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UNITED STATES OP AMERICA. 



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CONSIDERATIONS 



ON THE ORIGIN OF 



THE AMERICAN W A R. 



CONSIDERATIONS 



OX THE ORIGIN OF 



THE AMERICAN WAR. 



HERBERT W. FISHER, M. A. 

LATE STUDENT OF CHRIST CHURCH, OXFORD. 



I^onbott mh Cambribge : 

MACMILLAN AND CO. 

1865. 






LONDON : 

R. CLAY, SON, AND TAYLOR, PRINTERS 

BREAD STREET HILL. 




PREFACE. 

I NEED scarcely say that the following 
pages make no pretension to containing any- 
thing like an exhaustive account of the origin 
of the American Civil War. I have confined 
myself almost entirely to an attempt to deter- 
mine the position of parties at the Presidential 
Election of i860, with no more historical 
reference than was absolutely necessary to 
explain it. It would be too much to expect 
that a treatise of this description, dealing 
mainly, as it does, with the constitutional 
aspect of the controversy, can prove generally 
attractive, at the present moment especially, 
whilst feelings are violently enlisted on one side 
or the other, whilst the combat is raging, and 
the pacific struggles which immediately pre- 



vi Preface. 

ceded Secession are not old enough for history, 
yet, separated as they are from us by rivers of 
blood, appear too remote for interest. Still, 
the war cannot be understood without them ; 
and I should be glad to think that I had 
contributed, in however slight a degree, to the 
dispassionate consideration of the question 
which divided North and South at the time 
of the Secession. 

March, 1865. 



CONSIDERATIONS 

ON THE ORIGIN OF 

THE AMERICAN WAR. 

In attempting a slight sketch of the con- 
stitutional struggle which led to the Civil 
War in America, the great difficulty is to 
know where to begin ; for the elements of the 
strife were present in the Republic from the 
first: Federal rights 1 and State rights, free 
labour and slave labour. 

I believe, however, that I am right in fixing 
upon the year 1820 as my starting point, the 

1 For the benefit of those to whom the subject is altogether 
new, I would explain that by Federal rights are meant those 
rights which are vested by the Constitution in the central power; 
by State rights those which are vested in the individual states of 
the Union. Washington, Adams, and Alexander Hamilton were 
" Federalists ; " Jefferson and Madison were the great upholders 
of " State rights," and may be regarded as the founders of the 
Democratic party which is identified with these views. 

B 



2 Considerations on 

first year in which the violent agitation burst 
forth, which after one long interval of rest was 
renewed to distract, and finally to dissolve the 
Union. 

It was in 1819 that Missouri, being part of 
the territory sold by France to the United 
States in 1803, applied to Congress for permis- 
sion to frame a State constitution preliminary 
to admission into the Union. This application 
at once raised the question whether slavery 
should or should not be extended into the new 
States; a fierce contest 1 ensued, which was set at 
rest in 1820 by the bill generally known as the 
" Missouri Compromise Bill," which provided 
a that in all the territory ceded by France to 
the United States, under the name of Louisiana, 
which lies north of latitude 36° 30' N. excepting 
only such part thereof as is included within 
the limits of the State (Missouri) contemplated 
by this Act, slavery and involuntary servitude, 

1 The circumstance that when Missouri applied for admission 
the Free States and the Slave States were exactly equal hi number, 
so that the result involved a majority in the Senate to one side 
or the other, will account in a great measure for the vehemence 
of this contest. See Cairnes' " Slave Power,*' p. 214. 



The American War. 3 

otherwise than in the punishment of crime, 
whereof the party shall have been duly con- 
victed, shall be and is hereby for ever pro- 
hibited." Accordingly, on 10th August, 182 1, 
Missouri became one of the slave-holding States 
of the Union. 1 

Like most compromises, when there is a 
principle at stake, this of Missouri gratified 
neither party. However, it was followed, as it 
would seem, by many years of repose on the 
slavery question. In 1845, 2 Texas was admitted 
into the Union as a Slave State, a clause having 
been inserted into the resolution for its annex- 
ation, extending the Missouri Compromise line 
through the Republic of Texas so far westward 
as the new acquisition might reach. li I not 
only acquiesced in and supported the measure 
then," said Mr. Douglas, 3 "but I did it with the 

1 Arkansas, which was also part of the old Louisiana terri- 
tory, was created into a territory at this time, and became a 
State (slave) in 1836. 

2 Florida was admitted in the same year, also as a Slave 
State. 

3 Of Illinois, leader of the Democratic party. Speech in the 
Senate against the admission of Kansas under the Lecompton 
(Slave) Constitution, March 22d, 1858. 

B 2 



4 Considerations on 

avowed purpose of continuing that line to the 
Pacific Ocean so soon as we should acquire the 
territory. Accordingly, in 1848, when we had 
acquired New Mexico, Utah, and California, 
from the Republic of Mexico, and the question 
arose in this body in regard to the kind of 
government which should be established therein, 
the Senate, on my motion, adopted a proposi- 
tion to extend the Missouri Compromise line to 
the Pacific Ocean, with the same understanding 
with which it was originally adopted." Mr. 
Douglas then proceeds to quote the terms of 
his motion, and the division list, by which it 
appears that it was carried in the Senate ; the 
yeas being 32, the nays 21. But in the House 
of Representatives it was lost by a majority 
of 39. " By that vote," continues Mr. Douglas, 
" the policy of separating free territory from 
slave territory by a geographical line was aban- 
doned by the Congress of the United States . . . 
It will be seen by reference to the votes in 
the Senate and House of Representatives, that 
Southern men voted in a body for the extension 
of the Missouri Compromise line, and a very 



The A merican War. 5 

large majority of the Northern men voted 
against it. The argument then made against 
the policy of a geographical line, was one which 
upon principle it was difficult to answer. It was 
urged that if slavery was wrong north of the line, 
it could not be right south of the line ; that if 
it was unwise, impolitic, and injurious on the 
one side, it could not be wise, politic, and 
judicious on the other ... I thought these argu- 
ments were difficult to answer upon principle. 
The only answer urged was that the policy 
had its origin in patriotic motives, in fraternal 
feeling, in that brotherly affection which ought 
to animate all the citizens of a common 
country, and that for the sake of peace, and 
harmony, and concord, we ought to adhere to 
and preserve that policy. Under these consi- 
derations, I not only voted for it, but moved it, 
and lamented as much as any man in the 
country its failure ; because that failure precipi- 
tated us into a sectional strife and agitation, the 
like of which had never before been witnessed 
in the United States, and which alarmed the 



6 Considerations on 

wisest, the purest, and the best patriots in the 
land, for the safety of the Republic." 

The Missouri Compromise Bill, however, was 
not repealed, but the principle of a geographi- 
cal line having been abandoned, the whole sub- 
ject was reopened, and was vehemently agitated 
until 1850, when Mr. Clay introduced and suc- 
ceeded in carrying his celebrated compromise 
measures, " predicated on the abandonment of 
a geographical line, and upon the great principle 
of self-government in the territories, and the 
sovereignty of the States over the question of 
slavery, as well as over all other matters of 
local and domestic concern." 1 

Mr. Clay's compromise is of such great his- 
torical importance that I shall be excused for 
giving in extenso the propositions which he laid 
before the Senate for " an amicable arrange- 
ment of all questions in controversy between 
the Free and the Slave States, growing out of 
the subject of slavery." 

" 1. Resolved. — That California, with suitable 
boundaries, ought, upon her application, to be 

1 Mr. Douglas' Speech. 



The A merican War, 7 

admitted as one of the States of this Union, 
without the imposition by Congress of any re- 
striction (condition) in respect to the introduction 
or exclusion of slavery within those boundaries. 

" 2. Resolved. — That as slavery does not 
(now) exist by law (in) and is not likely to 
be introduced into any territory acquired by 
the United States from the Republic of Mexico, 
it is inexpedient for Congress to provide by law 
either for its introduction into, or its exclusion 
from, any part of the said territory ; and that 
appropriate territorial Governments ought to 
be established by Congress in all of the said 
territory, not assigned as (w T ithin) the boun- 
daries of the aforesaid State of California, with- 
out the adoption of any restriction or condition 
on the subject of slavery." 

The third Article fixes the boundaries of 
Texas. 

The fourth provides for the payment of the 
public debt of that State. 

"5. Resolved. — That it is inexpedient to 
abolish slavery in the district of Columbia 
while that institution continues to exist in the 



8 Considerations on 

State of Maryland, without the consent of that 
State, without the consent of the people of the 
district, and without just compensation to the 
owners of slaves within the district. 

" 6. But, resolved. — That it is inexpedient to 
prohibit within the district the slave-trade in 
slaves brought into it from States or places 
beyond the limits of the district, either to be 
sold therein as merchandise, or to be trans- 
ported to other markets without the district of 
Columbia. 

"7. Resolved. — That more effectual provision 
ought to be made by law according to the 
requirement of the constitution for the resti- 
tution and delivery of persons bound to serve 
or labour in any State who may escape into 
any other State or territory in the Union. 

"And, 8. Resolved. — That Congress has no 
power to prohibit or obstruct trade in slaves 
between the slave-holding States; but that the 
admission or exclusion of slaves brought from 
one into another of them depends exclusively 
upon their own particular laws." 

These resolutions were objected to, when 



i he A merican War. 9 

offered, exclusively by Southern senators (pre- 
eminently by Mr. Jefferson Davis), 1 on the 
ground that they in effect conceded everything 
to the North, especially by their assertion that 
slavery had no legal existence in the territories, 
and their implication of the power of Congress 
to exclude it ; though it will be observed that 
the second Article avoids the constitutional 
question, and is based upon what is expedient. 
The contest ended by the passing of Bills : 
1. Admitting California 2 as a free State. 

1 See Ripley and Dana's "New American Encyclopaedia," 
tit. Henry Clay. 

- Upon the passage of the California Bill, later in the same 
year, Messrs. Mason and Hunter, Senators from Virginia ; 
Butler and Barnwell, from South Carolina ; Soule, from 
Louisiana ; Turney, from Tennessee ; Atchison, from Missouri ; 
Morton and Yulu, from Florida ; and Jefferson Davis, from 
Mississippi, speaking the language of the extreme or South- 
rights men (with which we shall soon become more fami- 
liar), entered a protest, in which the three following clauses 
occur : — 

" We have dissented from this Bill because it gives the sanction 
of law, and thus imparts validity, to the unauthorised action of 
a portion of the inhabitants of California, by which an odious 
discrimination is made against the property of the fifteen slave- 
holding States of the Union, who are thus deprived of that 
position of equality which the constitution so manifestly designs, 

and 



io Considerations on 

2. Defining the boundaries of Texas, &c. &c. 

3. Organizing the territories of New Mexico 
and Utah by Bills silent on the subject of 
slavery, thus giving effect to Art. 2. 4. Prohibit- 
ing the slave trade in the district of Columbia. 
And 5. Granting more summary and effective 

and which constitutes the only sure and stable foundation on 
which the Union can repose. 

''Because the right of the slave-holding States to a common 
and equal enjoyment of the territoiy of the Union has been 
defeated by a system of measures, which, without the authority 
of precedent, of law, or of the constitution, were manifestly 
contrived for that purpose, and which Congress must sanction 
and adopt should this Bill become a law. 

" Because to vote for a bill passed under such circumstances 
would be to agree to a principle which may exclude for ever 
hereafter, as it does now, the States which we represent, from 
all enjoyment of the common territory of the Union, a principle 
which destroys the equal rights of their constituents, the 
equality of the Southern States in the Confederacy, the equal 
dignity of those whom they represent as men and as citizens in 
the eye of the law, and their equal title to the protection of 
the government and the constitution." See Williams's "Rise 
and Fall of the Model Republic," p. 335, where the protest is 
given in full. Mr. Calhoun is said to have been the first prominent 
man of the South who advanced (in 1847) by resolution in the 
Senate, the doctrine that the constitution of its own force 
guaranteed the right to take slaves into the territories of the 
United States, and that Congress had no power to prevent it. 
Mr. Doolittle's Speech in the Senate, Jan. 3, i860. 



The A merican War. 1 1 

provision for the recovery of fugitives from 
labour (the Fugitive Slave Law). 

Whatever opposition these resolutions had 
encountered in Congress, once passed, they 
were accepted as a final basis of reconciliation 
between all parties. "The compromise of 1850 
was pronounced," says Mr. Seward, 1 " a full, 
final, absolute, and comprehensive settlement 
of all existing and all possible disputes concern- 
ing slavery under the Federal authority." Ac- 
cordingly, 2 "in the Presidential contest of 1856, 
the great political parties of the day each nomi- 
nated its candidate for the Presidency upon a 
platform which endorsed the measures, and both 
pledged themselves to carry them out in good 
faith in all future times in the organization of 
all new territories." The question of slaveiy in 
the territories, it was fondly hoped, was " for 
ever banished from the floor of Congress. " 

This hope w T as illusory. The organization 
of Kansas and Nebraska preparatory to their 
admission as States into the Union was the 

1 Speech in the Senate of 29th Feb. i860. 

2 Mr. Douglas' speech. 



12 Considerations on 

signal for the renewal of the conflict in 1854. 
Both of these territories, like Missouri, were 
part of the lands bought from France under 
the general designation of Louisiana. They 
came therefore within the operation of the 
Missouri Compromise Bill, and, lying north of 
the geographical line, could, according to the 
terms of that instrument, only be admitted as 
Free States. However, it was urged that the 
Missouri Compromise Bill, though it was not 
expressly repealed, had been virtually superseded 
by the adoption of Clay's compromise, the prin- 
ciples of which had now to be applied. 

Its repeal was therefore proposed, and in spite 
of the argument founded upon the adoption of 
the compromise, it was vehemently opposed by 
the North, on the ground that it was a renewal 
by the Democratic party of the agitation, which 
it had bound itself to discontinue. There was, 
moreover, a principle implied in the Bill, which 
was valuable to the North, viz. that Congress 
had the right to interfere in the matter of slavery 
in the territories. Other motives were not wanting. 
The annexation of Texas and the other Mexican 



The A merican War. 1 3 

provinces in the avowed interest of slavery, had 
been very distasteful to that party. It will be 
observed also that the North had everything to 
gain and nothing to lose by the Missouri Com- 
promise in the matter of Kansas. The repeal Y of 
the Act, on the other hand, opened Kansas and 
Nebraska to the South, whilst it removed from 
the Statute Book a Bill which, although empha- 
tically a Southern measure, was (in the language 
of Mr. Mason, of Virginia), " always odious to the 
South and offensive to its honour.'' The question 
was vehemently agitated, but the Democratic 
party in alliance with the South succeeded (in 
spite of the secession of the Northern Whigs who, 

1 There has been abundance of invective on the subject of this 
Bill, each party accusing the other of perfidy, repudiation, &c. 
&c. Proposed by Mr. Clay, it was carried originally by a 
very small majority, the South voting unanimously for it, the 
North almost unanimously against it. It was not therefore 
strictly a compromise at all. It seems to me that the South was 
justified in moving for its repeal after Mr. Clay's Compromise 
Bill, which announced a different principle ; at the same time, as 
that measure did not repeal the Missouri Bill, it might be taken 
that it was not meant to disturb existing arrangements. Nor had 
the North by refusing to extend the line to the Pacific precluded 
itself from retaining it in the Lousiana territory. The facts are 
that the South carried the Missouri Bill and repealed it, whilst 
the North opposed first its adoption and then its repeal. 



14 - on 

though supporters of the Compromise of 1850, 
with a few exceptions, abandoned their old allies 
and joined the opposite camp) in carrying 
measure known as the "Kansas Nebraska Bill/ 1 

which repealed the Missouri Bill, and pronoun, 
the people of these territories perfectly free t 
establish freedom or slavery, and pledged C 
gress to admit them in due time as either Frc:- 
States or Slave States of the Union 

The important clause of this Bill ran thus : 
"The constitution and all laws of the United 
States, which are not locally inapplicable, shall 
have the same force within the said territory 
of Kansas as elsewhere within the United 
States, except the eighth section of the Act 
preparatory to the admission of Missouri intc 
the Union, approved March 6th, iS::. which 
being inconsistent with the principle of non- 
intervention by Congress with slavery in the 
States and territories as recognised by the 
Legislation of 1S50. commonly called the Com- 
promise measures, is hereby declared inopera- 
tive and void: it teing the true intent and 
meaning of this Act not to legislate slavery 



The A mericah War. 1 5 

into any territory or State, nor to exclude it 
therefrom, but to leave the people thereof 
perfectly free to form and regulate their domes- 
tic institutions in their own way, subject only 
to the constitution of the United States. Pro- 
vided that nothing herein contained shall be 
construed to revive or put in force any law or 
regulation which may have existed prior to 
the Act of 6th March, 1820, either protecting, 
establishing, prohibiting, or abolishing slavery." 
A provision was also inserted in the Bill that 
writs of error and appeals from the final de- 
cisions of the Supreme Court (of the territory) 
should be allowed, and might be taken to the 
Supreme Court of the United States "in all 
cases involving title to slaves," and " upon any 
writ of habeas corpus involving the question of 
personal freedom." 

This measure was carried upon the common 
agreement of its supporters (adopting the ground 
taken by Mr. Clay) that it was inexpedient for 
Congress to interfere in the question of slavery 
in the territories. The opinions on the consti- 
tutional question of the right of Congress to 



1 6 Considerations on 

interfere were widely divergent, and it was evident 
that the final settlement was still far distant. 

And now began a fierce struggle for the 
possession of Kansas. 1 Emigrations organized 
upon the part of the North were followed by 
counter-emigrations (if they can be so called) 
from Missouri.' 2 It would be wearisome to 
detail the scenes of violence and civil war 
which ensued. Each party set up counter- 
constitutions, but the unmistakeable sense of the 
majority was in favour of free institutions. The 
last constitution submitted to the popular vote 
(October 4th, 1859), prohibited slavery, and was 
ratified by a majority of about 4,000. In i860 
Congress had not yet accepted it. 8 



1 Nebraska happily escaped all these troubles. 

2 As a proof of the ferocity of party spirit which prevailed, 
may be cited an Act passed by the pro-slavery men, making it a 
capital offence to assist slaves in escaping either into the terri- 
tory, or out of it ; and felony punishable with imprisonment at 
hard labour from two to five years, to conceal or aid escaping 
slaves, to circulate anti-slavery publications, or to deny the right 
to hold slaves in the territory ; also an Act requiring all voters 
to swear to sustain the Fugitive Slave Law. See Ripley and 
Dana's "New American Encyclopaedia," tit. " Kansas." 

3 See "New American Encyclopaedia, " tit. Kansas. 



The A merican War. 1 7 

We are now arrived at the Presidential elec- 
tion of 1856. The Kansas Nebraska Bill had 
produced nothing but confusion, and the Demo- 
cratic party, entered upon the contest weakened 
by the Whig secession and wholly discredited in 
the North. 1 However, in alliance with the South, 
it was strong enough to carry the Cincinnati 
platform, which adopted the principles of the 
compromise, and to secure the Presidency and 
Vice-Presidency of the United States in the 
persons of Mr. Buchanan and Mr. Breckinridge. 
. The Cincinnati platform contained the two 
following Articles : — 

" 1. Resolved. — That claiming fellowship 
with and desiring the co-operation of all who 
regard the preservation of the Union under the 
constitution as the paramount issue, and- re- 
pudiating all sectional parties and platforms 

1 In 1854 only thirteen democrats were elected to the House 
of Representatives in that year from all the non-slaveholding 
States, California included, and four of that number were from 
the State of Illinois. The distinct organization of the Republican 
party on the basis of slavery restriction dates, it is said, from 
this time. — Cairnes' Slave Power, p. 236. I have been unable 
to see their platform which was adopted at Philadelphia in 1856. 

C 



1 8 Considerations on 

concerning domestic slavery, which seek to 
embroil the States and incite treason and 
armed resistance to law in the territories, and 
whose armed purposes, if consummated, must 
end in civil war and disunion, the American 
Democracy recognise and adopt the principles 
contained in the organic laws, establishing the 
territories of Kansas and Nebraska, as embody- 
ing the only sound and safe solution of the 
slavery question, upon which the great national 
idea of this whole country can repose in its 
determined conservatism of the Union — non- 
intervention by Congress with slavery in State 
and territory, and in the district of Columbia. 

" 2. That this was the basis of the compro- 
mises of 1850, confirmed by both the Democratic 
and Whig parties in National Conventions, rati- 
fied by the people in the election of 1852, and 
rightly applied to the organisation of territories 
in 1854." 

Mr. Buchanan, in accepting the nomination 
of the Cincinnati convention, expressed himself 
thus, June 16th, 1856: "The recent legislation 
of Congress respecting domestic slavery, derived, 



The American War. 19 

as it has been, from the original and pure fountain 
of political power, the will of the majority, pro- 
mises, ere long, to allay the dangerous excite- 
ment. This legislation is founded upon principles 
as ancient as free government itself, and in 
accordance with them, has simply declared that 
the people of a territory, like those of a State, 
shall decide for themselves whether slavery shall 
or shall not exist within their limits. The Kan- 
sas Nebraska Act does no more than give the 
force of law to this elementary principle of 
self-government. This principle will surely 
not be controverted by any individual of any 
party professing devotion to popular govern- 
ment. Besides, how vain and illusory would 
any other principle prove, in practice, in regard 
to the territories ! This is apparent from the 
fact admitted by all, that after a territory shall 
have entered the Union and become a State, 
no constitutional power would then exist which 
could prevent it from either abolishing or esta- 
blishing slavery, as the case may be, according 
to its sovereign will and pleasure." 

Equally explicit was Mr. Breckinridge, who 
C 2 



20 C vnsidi on 

had been chosen one of the c SB from 

Kentucky to the Cincinnati convention : u The 
whole power of the Democratic : realisation 
is pledged to the following propositions — That 
Congress shall not intervene upon this subject 
in the States, in the territories, or in : trict 

of Columbia; that the people rf sach territory 
shall determine the cues::::: for themselves, and 
be admitted into the Union i . footing of 

■feet equality with the original, without dis- 
crimination on account of the allowance >r | 
hibition of slaver}'." 

Whilst the Kansas Nebraska Bill was going 
through Congress a case was going through the 
Courts, the decision of which by the Supreme 
Court in I S57 will ever be memorable in Ame- 
rican history, and which tended greatly to pre- 
cipitate events. This was the celebrated Dred 
Scott case. 1 which ce::aea- — I. That a free 
negro was not a citizen. 2. That the Missouri 
Compromise was unconstitutional, ana that 

- XIX. Howard's Reports. Fcr an analysis :£ tins ;: : t see 
\ppendix. 
2 Justices McLean and Curtis tissentint:. 



The American War. 21 

Congress had no power to prohibit slavery 
in the territories. 3. That slaves were property, 
and that the citizens of all the States had a 
right to go into the territories with their pro- 
perty, and that this right could not be impaired 
by either Congress or territorial legislatures. 

I am not going to presume to express an 
opinion whether upon legal grounds this case 
was well or ill decided. That upon the right 
of Congress to legislate slavery or no slavery 
in the territories it was contrary to the previous 
current of legal authority, admits, I think, 
of no doubt. It is opposed to the evident 
opinion of Judge Story; 1 and Chancellor Kent 
may be cited on the same side, who, though 
he does not advert to this particular point, 
says broadly : 2 " With respect to the vast terri- 
tories belonging to the United States, Congress 
have assumed to exercise over them supreme 
power of sovereignty. Exclusive and unlimited 
power of legislation is given to Congress by 

1 Constitution of the United States of America, III. 191. ed. 

1833- 

2 Commentaries; vol. i. pt. 2, p. 430, ed. i860. 



22 Considerations on 

the constitution 1 and sanctioned by judicial de- 
cisions." 

It seems also to have been contrary to con- 
stitutional precedent. 

In 1789 the first Congress which sat under 
the constitution passed an Act to enforce - an 
ordinance of 1787, by which the Congress of 
the Confederation had before the constitution 

1 Art. 4. sec. 3. 

2 Mr. Douglas, in his speech in the Senate upon the Le 
Compton Constitution (March, 1858), saw in this piece of legis- 
lation a precedent for the principle of the Missouri Compromise. 
Its force was denied by Mr. Jefferson Davis in a speech in the 
Senate, 16th May, i860. He contended (citing the authority of 
Mr. Madison) that the article of the ordinance in question was 
not confirmed by the Act of 1789. The point may be conceded 
in argument, for waiving the question whether the Congress of 
the Confederation stood in this matter upon the same ground as 
the Congress of the Constitution, this fact remains. In 1803 
the emigrants into the Indiana territory (now forming the States 
of Indiana, Illinois, Michigan, and Wisconsin), memorialized 
Congress for a temporary suspension of the article of the 
ordinance prohibiting slaver}-. The memorial was referred by 
the House of Representatives to a select committee, which re- 
ported against its adoption. The subject was the next winter 
referred to another committee, which reported in favour of " a 
qualified suspension for a limited time of the inhibition afore- 
said." But Congress took no action on the Report. The same 
thing occurred in 1806 and again in I So 7, and with the same 
result. It is clear, therefore, that if not in 1789, certainly in 



The American War. 23 

prohibited slavery in all the territory north- 
west of the Ohio river. 1 No great while after 
the adoption of the original constitution, North 
Carolina ceded to the Federal Government the 
country now constituting the State of Tennessee, 
and a few years later Georgia ceded that which 
now constitutes the States of Mississippi and 
Alabama. In both deeds of cession it was 
made a condition by the ceding States (in which 
there were already slaves) that the Federal 
Government should not prohibit slavery in the 

1803, 1806, and 1807, Congress recognised and ratified the pro- 
hibition of slavery, contained in the ordinance of 1787, and con- 
sidered itself competent to deal with the subject. See Mr. 
Justice McLean's judgment in the Dred Scott case, and Mr. 
Horace Greeley's American Conflict, p. 52, a work which I 
have seen since these pages were written. 

1 I quote now the substance of part of Mr. Lincoln's speech 
at the Cooper Institute, 27th February, i860. All these pre- 
cedents are mentioned and relied upon by Justices McLean and 
Curtis in the Dred Scott case. Some of them were objected to on 
the other side (see Appendix). Mr. Justice Curtis enumerates 
eight distinct instances, beginning with the first Congress, and 
coming down to the year 1 848, in which Congress had excluded 
slavery from Territories of the United States, and six distinct 
instances in which Congress organized Governments of Territories 
by which slavery was recognised and continued, beginning also 
with the first Congress, and coming down to the year 1822, pp. 
618-19. 



24 Considerations on 

ceded country. Under these circumstances, 
Congress, on taking charge of these countries, 
did not prohibit slaver}- within them ; but they 
interfered with it, took control of it, even there, 
to a certain extent. In 179S Congress organized 
the territory of Mississippi In the Act of 
Organization they prohibited the bringing of 
slaves into the territory from any place with- 
out the United States by fine, and giving free- 
dom to the slaves so brought. 1 Again, in the 
organization of the territory which now consti- 
tutes the States of Louisiana, Congress interfered 
with slavery, and took control of it in a more 
marked and extensive way than they did in 
the case of Mississippi. The substance of the 
provision therein made in relation to slaves 
was — 1. That no slave should be imported to 
the territory from foreign parts. 2. That no 
slave should be carried into it who had been im- 
ported into the United States since 1st of May, 
1.798. 3. That no slave should be carried into 

1 Under Art. I, sect. 9 of the Constitution, Congress had no 
power to prohibit the importation of slaves prior to the yea. 
1808. Hence the force of precedents dealing with the subject 
before that time. 



The American War. 25 

it except by the owner, and for his own use as a 
settler; the penalty in all cases being a fine upon 
the violator of the law and freedom to the slave. 1 
And Mr. Howard, of Ohio, in a speech de- 
livered in the House of Representatives, 24th 
of April, i860, expressed himself thus — "The 
great minds who conceived and brought forth 
the Constitution at that day could not have 
intended to grant powers to Congress to govern 
territories that they did not then, and never 
expected to own. I know there is a great 
diversity of opinion, and a vast array of argu- 
ment and authority have been produced upon 
both sides of the question. The Supreme 
Court of the United States have said in the 
case of Sere and Laraldo v. Petot, 6 Cranch, 
336 ; The American Insurance Company v. 
Canter, 1 Peters, 511; The United States v. 
Gratiot, 14 Peters, 526; Cross v. Harrison, 16 
Howard, 194 — 'That the power of governing 
and legislating for a territory is the inevitable 
consequence of the right to acquire and hold it ; 
and could this position be controverted, the 

1 See also Appendix, p. 89, note. 



26 Considerations on 

Constitution declares that Congress shall have 
power to dispose of and make all needful rules 
and regulations respecting the territory and 
other property belonging to the United States.' 1 
Now I have given the principle upon which this 
whole current of authorities has been based, and 
I ask every candid mind to read and examine 
carefully all these cases, and see whether in any 
one of them the question was at all argued, or 
was even fairly before the Court, and they all 
proceed upon the hypothesis that if Congress 
does not possess the power, where does it exist ? 
Doubts and difficulties have arisen at every 
turn, carrying conviction always to the mind 
of the investigator that uncertainty and inde- 
cision have beset the paths of the clearest in- 
tellects and the finest minds. Such men as 
Chief Justice Marshall, 2 and others of the su- 
preme bench, are entitled to the highest credit 
and respect for their legal learning and powers 
of thought ; for their capacious intellects seemed 

1 Art. iv. sect. 3. 

2 Mr. Howard refers to the case of the Atlantic Insurance 
Company^. Canter, 1 Peters, 511. 



The American War. 2j 

to drink to the very bottom the most abstruse 
questions of law and fact. Yet they were liable 
to err, and they were evidently mistaken upon 
this important question of constitutional power. 
In the legislation first had, after Lousiana 
was ceded to the Union, Congress in that 
undertook to prohibit the importation of slaves 
into that territory except in the case from 
the States of the Union where they were 
for the sole use of the party bringing them. 
Two years after Florida was created into a 
territorial government, Congress passed an Act 
emendatory of the original Territorial Act, in 
which she confirmed certain rights, and fixed 
certain prohibitions which seemed to have been 
neglected in the original Act. In all cases here- 
tofore she has retained to herself the right to 
examine the laws passed by the Territorial 
Legislatures, and if unconstitutional or by her 
disapproved, they were null and void. But did 
she ever claim the right to pass others in their 
stead that were constitutional and sufficient ? 
But that power was prohibited in the Kansas 
and Nebraska Act, showing conclusively that as 



28 Considerations on 

this question is more thoroughly investigated 
and better understood, the Legislative Branch of 
the Government have been exercising powers not 
guaranteed to her, and that the time has arrived 
to restrict her to her proper limits." 

It is scarcely necessary to say that the de- 
cision of this case was hailed with tumults of 
joy in the South, and created corresponding 
consternation in the North. And not unreason- 
ably ; for if neither Congress nor the Territorial 
Legislatures could legislate against slavery, it 
was questionable how the territories upon be- 
coming States could find themselves invested 
with this power. 1 Could the State Legislature, 

1 The argument raised by this question led to great refine- 
ments. Some speakers took their stand upon the doctrine of 
the right of sovereignty, or, rather, of self-government, inherent 
in the people. Till called into life by Congress it was true that 
the territories were impotent to legislate upon this subject, but 
as soon as they received from Congress an Act organizing them 
into a territorial government, they found themselves instinct with 
the attributes of self-government, and competent to pronounce 
for free or for slave institutions. (See Mr. Montgomery's Speech 
in the House of Representatives, March 29th, i860.) To this it 
was replied that the abolition of slavery was an act of sovereignty, 
and that a Territorial Legislature, although it is invested with 
legislative power, has no power of sovereignty conferred upon it. 



The American War, 29 

it was asked, the creature of Congress, do what 
the creating power could not do ? Congress 
can only transmit that measure of authority 
which it possesses itself. And if this question 
should be answered in the negative, it was not 
easy to distinguish between the new States and 
the old States, or to resist the conclusion that 
anywhere and everywhere throughout the Union 
to exclude slavery was illegal. 

The Republican party so construed it, took 
up the challenge, and defied it. 

Mr. Lincoln said at Chicago, 10th July, 1858 : 
"If I were in Congress and a vote should 
come up on a question whether slavery should 
be prohibited in a new territory, in spite of 
the Dred Scott decision I would vote that it 
should." 1 And Mr. Seward, addressing the 

Hence arose a distinction between the territories before and after 
they became States, and it was contended that the people of a 
territory when they came to form their State constitution, and 
then only, were qualified to establish their domestic institutions. 
This was the position finally taken up by Mr. Jefferson Davis, 
See infra, p. 42. 

1 Later, as President, in his Inaugural Address, Mr. Lincoln 
said, " The candid citizen must confess that if the policy of the 
Government upon the -vital questions affecting the whole people 



30 Considerations on 

Senate on the 3d of March, 1858, spoke as 
follows : " The Supreme Court also can reverse 
its spurious judgment more easily than we can 
reconcile the people to its usurpation. . . . The 
people of the United States never can, and 
they never will, accept principles so unconsti- 
tutional and so abhorrent. Never, never. Let 
the Court recede. Whether it recedes or not. 
we shall re-organize the Court, and thus reform 
its political sentiments and practices, and bring 
them into harmony with the constitution and 
the laws of nature." l And in October of the 

is to be irrevocably fixed by the decisions of the Supreme Court 
the instant they are made, as in ordinary litigation between 
parties in personal actions, the people will have ceased to be 
their own Piasters, having to that extent practically resigned 
their Government into the hands of that eminent tribunal. " But 
it is clearly laid down that a law repugnant to the Constitution 
is void, and that the Courts are not bound by it. Marbury v, 
Madison, I C ranch, 137 ; Story's Constitution of the United 
States, III. 508 ; Kent's Commentaries, 10th Edit. I. 504. 
Congress is only omnipotent so long as it is within the written 
Constitution, which it is for the Courts to interpret. The 
remedy must be sought in the amendment of the Constitution. 

1 Mr. Seward had before this appealed to the " higher law. " 
The expression has become so historic that the exact passage in 
which it occurs may be interesting. It occurs in a speech on the 
admission of California into the Union in 1850. "'''It is true, 



The American War. 31 

same year : " Thus these antagonistic systems 
are continually coming into closer contact, and 
collision results. Shall I tell you what this 
collision means ? They who think it is acci- 
dental, unnecessary, the work of interested or 
fanatical agitators, and therefore ephemeral, 
mistake the case altogether. It is an irre- 
pressible conflict between opposing and endur- 
ing forces, and it means that the United States 
must and will, sooner or later, become entirely 
a slaveholding nation or entirely a free labour 
nation. ... It is the existence of this great 
fact that renders all such pretended compro- 
mise, when made, vain and ephemeral." 

And now came the canvass for the Presidential 
election of i860. Hitherto upon the question 
of slavery the South and a large section of the 

indeed, that the national domain is ours. It is true it was 
acquired by the valour and with the wealth of the whole nation. 
But we hold, nevertheless, no arbitrary power over it : we 
hold no arbitrary power over anything, whether acquired law- 
fully or seized by usurpation. The constitution regulates our 
stewardship; the constitution devotes the domain to union, to 
justice, to defence, to welfare, and to liberty. But there is a 
higher law than the constitution which regulates our authorities 
over the domain, and devotes it to the same noble purposes. " 



32 Considerations on 

Democrats had held together. The principles 
implied, though not expressed, in the Clay 
compromise, were opposed to the opinions of 
the South Rights men, and Mr. Jefferson Davis 
had felt it his duty to protest against them. 
yet the compromise was accepted by the South. 
In the Kansas and Nebraska Bill the two par- 
ties had again agreed to suspend their dif- 
ferences, and to give effect to the compromise, 
and over the Cincinnati platform for a third 
time they had shaken hands. All at once we 
find ourselves in the presence of four hostile 
camps : the Republicans are ranged under 
Lincoln, the South under Breckinridge, the 
Democrats under Douglas, and a party for 
which it is difficult to find a name, under Bell. 1 

1 Mr. Bell, of Tennessee, was nominated, with Mr. Everett, 
as Vice-President, by a convocation styling itself " The Consti- 
tutional Union Convention " at Baltimore, upon the platform 
of "Our Country, the Constitution, the Union, and Enforce- 
ment of the Laws." The party which he represented appears 
to have been pre-eminently the party of peace and conciliation ; 
and probably, more or less, covered the ground formerly occu- 
pied by the Whig party, between the Democrats and the Repub- 
licans. For the purposes of this contest we may identify it with 
the former of these parties. Upon the subject of slavery in the 
territories, the resolutions of the Baltimore Convention seem to 



The American War. 33 

Whence came the split which shipwrecked 
the South and the Union ? 

To answer this question we must return to 
the Dred Scott decision. 

Supposing, said the South, a territory, in 
spite of this decision, to enact laws prohibiting 
the introduction of slavery, what is to be done ? 

This was a question which caused no em- 
barrassment to the Republican, who had con- 
sistently maintained that slavery or no slavery in 
the territories was a question for Congress ; but 
it was a difficult one for the Southerner to an- 
swer 1 who had embraced the Cincinnati platform; 
and not a very easy one for the Democrat who 
stopped short of holding that there was no limita- 
tion of slavery possible under the Constitution. 

The Republican, therefore, made short work 

have been substantially identical with the Democratic pro- 
gramme: "They agreed to be silent upon the subject of 
domestic slavery as in the constitution of the United States their 
fathers were silent before them. . . . There was no free terri- 
tory in the United States, where in any human possibility slaves 
could be taken and held. . . . Therefore, to insist upon the 
abstraction of no more Slave-states was alike uncalled for, 
unnatural, and unjust." — Report of Hon. E. Brooks in behalf 
of the Delegates .to the Baltimore Convention at New York. 

D 



34 Considerations on 

of the whole. Mr. Lincoln said 1 that the con- 
stitutional right to take slaves into the terri- 
tories if carried to its logical results would 
establish the right to take and hold them in 
the free States also. This he must have con- 
sidered a kind of redttctio ad absnrdum of the 
Dred Scott decision. It was moreover beating 
the advocates of State rights with their own 
weapons. The Democrat faltered and could 
make no better answer than this, that it did 
not matter whether or not the Supreme Court 
had decided that the Territories were incom- 
petent to prohibit slavery, because without 
absolutely prohibiting it, practically they could 
always keep it out by " unfriendly legislation." 
Let the Dred Scott decision stand. There 
would not be one slave State more or less ; for 
slavery could not be maintained for a day where 
there was an unwilling people. " If a majority 
of the people," said an eminent member of 
that party, 2 "are opposed to the institution, 

1 Sixth Quincy Debate, 13th Oct. 

5 Speech of Hon. Reverdy Johnson, in Faneuil Hall, Boston, 
June 7th, i860. This gentleman had twice argued the Dred 
Scott case on the Southern side. I find here rather a remarkable 



The A merican War. 3 5 

and if they do not desire to engraft it upon 
their territory, all they have to do is simply 
to decline to pass laws in the Territorial Legis- 
lature to prohibit it." Upon this solution of 
the difficulty Mr. Lincoln fell with a heavy 

quotation from a speech delivered by Mr. Jefferson Davis at 
Portland in 1858, afterwards revised and published by himself 
at Baltimore in 1859. " The territory being the common 
property of the State, equals in the Union, and bound by the 
Constitution which recognises property in slaves, it is an abuse of 
terms to call aggression the migration into that territory of one of 
its present owners, because carrying with him any species of 
property recognised by the constitution of the United States. 
The Federal Government has no power to declare what is 
property anywhere. The power of each State cannot extend 
beyond its own limits. As a consequence, therefore, whatever is 
property in any of the States must be so considered in any of the 
territories of the United States, until they reach to the dignity of 
community independence, when the subject-matter will be entirely 
under the control of the people, and be determined by their funda- 
mental law. If the inhabitants of any territory should refuse to 
enact such law and police regulations as would give security to 
their property or to his, it would be rendered more or less value- 
less in proportion to the difficulty of holding it without such pro- 
tection. In the case of property in the labour of man, or what is 
usually called slave property, the insecurity would be so great that 
the owner could not ordinarily retain it. Therefore, though the 
right would remain, the remedy being withheld, it would follow 
the owner would be practically debarred by the circumstances of 
the case from taking slave property into a territory where the sense 
of the inhabitants was opposed to its introduction. So much for 
the oft-repeated fallacy of forcing slavery upon any community." 
D 2 



36 Considerations on 

hand. "The Dred Scott decision expressly 
gives every citizen of the United States a 
right to carry his slaves into the United States 
territories. And now there was some incon- 
sistency in saying that the decision was right, 
and saying too that the people of the territory- 
could lawfully drive slavery out again. When 
all the trash, the words, the collateral matter, 
was cleared away from it — all the chaff was 
fanned out of it — it was a bare absurdity, no 
less than that a thing may be lawfully driven 
away from where it has a lawful right to be." 
" It was moreover unconstitutional," continued 
Mr. Lincoln, H for how could you, having sworn 
to support the Constitution, and believing it 
guaranteed the right to hold slaves in the terri- 
tories, assist in legislation intended to defeat that 
right ?" l Mr. Jefferson Davis, on the other side, 
was no less severe upon his old friends. " What 
a hollow promise," he said, 2 "was given to us 
in the provision (in the Kansas Nebraska Bill) 
referring this vexed question to judicial decision 

1 Speech at Columbus. Ohio. 

2 Speech in the Senate, May 16th, i860. 



The American War. 37 

in order that we might reach a point on which 
we might peacefully rest, if the inhabitants of 
the territories for which Congress had legislated 
could still decide the question, and set aside 
any decision of the Supreme Court, and do 
this lawfully/' 

And what answer made the South ? They 
too could only cut the knot by invoking the 
Congressional interference, which in 1856 they 
had alio intuitu abjured. 

It may be summed up thus : the Repub- 
lican required Congress to prevent slavery, the 
Southerner to protect it ; the Democrat adhered 
to his old motto of " non-intervention by Con- 
gress in the legislation of the territories." The 
Republican repudiated the Dred Scott decision 
in toto ; the Southerner upheld it, but invoked 
Congressional interference to enforce it ; the 
Democrat upheld it, but argued that practically, 
in spite of it, the territories could, if they 
chose, exclude Slavery. 

That this was the Southern platform is suf- 
ficiently proved by Mr. Breckinridge's accep- 
tance of the nomination for the Presidency, in 



38 Considerations on 

which the following passage occurs : " It is idle 
to attempt to smother these great issues, or 
to misrepresent them by the use of partisan 
phrases which are misleading and delusive. 
The people will look beneath such expressions 
as * Intervention/ ' Congressional Slave Code/ 
and the like, and will penetrate to the real 
questions involved. The friends of consti- 
tutional equality do not and never did de- 
mand a i Congressional Slave Code/ nor any 
other ' Code/ in regard to property in the 
territories. They hold the doctrine of non- 
intervention by Congress or by a Territorial 
Legislature, either to establish or prohibit 
slavery ; but they assert (fortified by the 
highest judicial tribunal in the Union) the 
plain duty of the Federal Government, in all 
its departments, to secure when necessary, to 
the citizens of all the States, the enjoyment 
of their property in the common territories, as 
everywhere else within its jurisdiction. The 
only logical answer to this would seem to be 
to claim sovereign power for the territories, or 
to deny that the Constitution recognises pro- 



The American War. 39 

perty in the services of negro slaves, or to deny 
that such property can exist." 

Mr. Buchanan's acceptance of the Cincinnati 
platform will be remembered. In a congratu- 
latory speech 1 upon the nomination of Mr. 
Breckinridge, he laboured, not I think very 
successfully, to show that he was consistent 
with that platform and himself. " If you hold 
property (slaves) " he said, " as an individual 
you hold it independent of Congress, or of the 
State Legislature, or of the Territorial Legis- 
lature : it is yours, and your Constitution was 
made to protect your private property against 
the assaults of legislative power. Well now, 
any set of principles which will deprive you 
of your property is against the very essence 
of Republican Government, and to that extent 
makes you a slave. . . . We have been told that 
non-intervention on the part of Congress with 
slavery in the territories is the true policy. 
Very well, I most cheerfully admit that Con- 
gress has no right to pass any law to establish, 
impair, or abolish slavery in the territories. 

1 9th July, 1S60. 



40 Considerations on 

Let this principle of non-intervention be ex- 
tended to the Territorial Legislatures, and let 
i: be declared that they in like manner have 
no power to establish, impair, or destroy slaven-, 
and then the controversy is in effect ended. 
This is all that is required at present, and I 
verily believe all that will ever be required. 
Hands off bv Congress, and hands oft* bv the 
Territorial Legislature." 

In other words, hands off, by Congress, after 
it has declared that neither territorial nor 
(would it not seem ?) State legislatures can 
prohibit slavery. I am as unable, as was the 
Democratic party in America, to reconcile the 
Mr. Buchanan of i860 with the Mr. Buchanan 
of 1856. 

Mr. Jefferson Davis appears, we have seen, 
in 1858 to have admitted that for all practical 
purposes the doctrine of unfriendly legislation 
was a sufficient protection to the interests of 
free labour, whilst it saved the rights of the 
slave-owner. 

But in a speech in the Senate, made 16th 
May, 1860, we find him saying, "It has been 






The American War. 41 

our uniform declaration that we denied the 
power of the Federal Government either to 
establish 1 or prohibit it (slavery) ; that we 
claimed for it protection as property, recognised 
by the Constitution, and we claim the right for 
it, as property, to go and to receive Federal 
protection wherever the jurisdiction of the United 
States is exclusive. ,, By non-intervention he 
understood the " absence of hostile legislation, 
not the absence of governmental protection." 
Nor did he confine himself to words, for on the 

1 The distinction between "establishing" and "protecting'' 
slavery, may be illustrated by the following extract from a 
speech of Mr. Montgomery in the House of Representatives, 
March 29th, i860. Mr. Curry, of Alabama (interrupting him), 
" I did not advocate an Act of Congress ' to establish slaver} 7 ,' 
nor does any Southern man ; we only ask Congress to pass 
laws to protect it in the territories." 

Mr. Montgomery. — "That is a mere play on words. If 
Congress did not interfere, the Territorial Legislature might 
drive it out, and it would not exist ; but where Congress inter- 
feres, it establishes slavery by protecting it ; for, if it were not 
for protection, it would cease in the territory. I look to the 
effect but not to the claim set up. We must call things by 
their right names ; and an Act to protect slavery in the 
territory would most effectually establish it. For protection 
is only asked where the people are hostile to slavery, and 
where it would not be allowed to remain if Congress did not 
protect it. " 



42 Considerations on 

first of March, i860, he introduced a series of 
resolutions into the Senate. Three of which 
are as follows: — 

" Resolved — That neither Congress nor a 
Territorial Legislature, whether by a direct 
legislation or legislation of an indirect or un- 
friendly character, possess power to annul or 
impair the constitutional right of any citizen of 
the United States to take his slave property 
into the common territories, and there hold 
and enjoy the same while the territorial con- 
dition remains. 

" Resolved — That if experience should at 
any time prove that the judicial and execu- 
tive authority do not possess means to insure 
adequate protection to constitutional rights in a 
territory, and if the territorial government 
should fail or refuse to provide the necessary 
remedies for that purpose, it will be the duty 
of Congress to supply such deficiency within the 
limits of its constitutional power. 

" Resolved — That the inhabitants of a terri- 
tory of the United States, when they rightfully 
form a constitution to be admitted as a State 



The American War. 43 

into the Union, may then, for the first time, like 
the people of a State, when forming a new 
constitution, decide for themselves whether 
slavery as a domestic institution shall be main- 
tained or prohibited within their jurisdiction, 
and they shall be received into the Union with 
or without slavery, as their constitution may 
prescribe at the time of their admission." 
These resolutions were carried in the Senate. 
I do not know whether they went any further. 

The truth of the matter seems to be that the 
Dred Scott decision had carried the Southern 
case on the subject of slavery in the territories 
further than they had ventured, as a party, to 
put it in 1850 and 1856, and much further than 
the Democrats, as a party, were prepared to 
follow them. 1 That judgment incited the North 
to take up a more determined attitude than 

1 Mr. Crittenden, of Kentucky, said in the Senate, May 
24th, i860,— " But for that (Dred Scott) decision, I think it 
would be difficult to deny that the Kansas Nebraska Bill 
gave full power to the territorial government on the subject 
* Power to regulate their own domestic institutions, and in their 
own way. ' What broader terms could be used ? ' Power to 
act on all subjects of rightful legislation.' What exception 
can you make to the generality of these powers ? " 



44 Considerations on 

ever in defence of the rights of Congress, and 
naturally induced corresponding action on the 
part of the South, fortified as it now was by a 
decision of the Supreme Court. But this party, 
instead of avowing openly that they had shifted 
their ground, endeavoured to convince the 
Democrats that they were still consistent with 
the Cincinnati platform. They failed to do so ; 
and one thing at all events is clear, that if they 
were, the two parties had from the first placed 
a different construction upon the meaning of 
those Resolutions. 

I am unwilling to encumber my text with 
legal arguments which it is only possible to 
indicate in the most general manner. But 
before leaving this part of the subject it might 
be desirable to mention in outline what were 
the leading points made on each side in the 
constitutional controversy, from which we can- 
not wholly escape. 

For the South it was contended that the 
territories belonged to the several states com- 
posing the Union, and not to the Government : 
therefore the citizens of the States have a right 



The American War. 45 

to enter the territories with their property, 
unless they have delegated to Congress the 
power to determine whether they shall so enter 
or not. Congress is the agent or trustee of the 
States invested with limited and enumerated 
powers. It is unreasonable a priori to suppose 
that the States should ever have conferred upon 
Congress the power of infringing the enjoyment 
of any kind of property, and in point of fact, 
they never did. Slaves are property, recog- 
nised as such by the Constitution. Therefore 
Congress has not only no power to prohibit 
their introduction into the territories, but is 
bound to protect the property in them. If 
Congress has no power to prohibit, a fortiori 
the Territorial Legislature, which is created by 
Congress, has none. 

To this it was replied, on the part of the 
North: The territories are the property of the 
whole Union represented by Congress, and not 
of the States, and Congress has supreme power 
over them. The powers entrusted to Congress 
are limited and enumerated ; but like all cor- 
porate bodies, it possesses all powers incident 



uu' Considerations tm 

to its corporate capacity, though they have not 
been expressly conferred upon it. 1 The po- 
of Congress to govern and legislate for the terri- 
tories is derivable from its pov.-er t-: acquire 
then:: were it otherwise, it is expressly given 
by the Constitution Art IV, sect 5 . Slaves 
are not property in the same sense as other 
property:; they are not recognised as such by 
the Constitution, ana were not undeistc : i to be 
so by the founders of the Republic : : but 
assuming then: :: be property, i: c:rs not 
follow that Congress is bound to interfere to 
protect it. since i: is admitted that the Territorial 
Legislature might do this if it olra-cu At ali 
events there is no express power given to 
Congress by the Constitution to protect pro- 
pert}*. 

The Democrat argued the question thus. 

Tustice McLean i~ Prei 5:::: case. r. ;;r. 



The American War. 47 

Slavery is a local, not a Federal institution. 
Where resides the power to legislate upon it in 
the territories ? It must be either in Congress 
or in the territories themselves. If in Congress, 
it has been delegated to the Territory in the 
organic Act under the general grant of "legis- 
lative power/' over "all rightful subjects of 
legislation consistent with the Constitution." 
If in the Territory, it has been recognised by 
Congress in the same Act. In either case, sub- 
ject to the Constitution (and this is a question 
for the courts), the territories have the power. 1 

To the argument of hardship to the slave- 
owner, from a policy of slavery restriction, Mr. 
Justice McLean in the Dred Scott case replied 
thus: "As regards any unfairness of such a 
policy to our Southern brethren, as urged in the 
argument, it is only necessary to say that with 
one fourth of the Federal population of the 
Union, they have, in the slave states, a larger 
extent of fertile territory than is included in the 
Free States ; and it is submitted, if masters of 

1 This was Mr. Douglas's argument in his "Reply to Judge 
Black. " 



4# Considerations on 

slaves be restricted from bringing them into 
free territory, that the restriction on the free 
citizens of non-slaveholding States, by bringing 
slaves into free territory, is four times greater 
than that complained of by the South. But 
not only so ; some three or four hundred thou- 
sand holders of slaves, by bringing them into 
free territory, impose a restriction on twenty 
millions of the Free States. The repugnancy 
to slavery would probably prevent fifty or a 
hundred freemen from settling in a slave terri- 
tory, where one slaveholder would be prevented 
from settling in a free territory." 

The Judge, however, does not touch two 
points which entered into the Southern view of 
the question, that of political preponderance, 
and that of the imputation cast upon the insti- 
tution of slavery by a restrictive policy. This 
it was that made any restriction " offensive to 
the honour " of the slave-owners. 

I trust that I have sufficiently indicated the 
position of the three parties in this contest. It 
is only necessary to add that the Republican 
party speaking through its chief, Mr. Lincoln 



The American War. 49 

had not committed itself to the doctrines of 
abolition. 1 Speaking the language and imi- 
tating the policy of the Founders of the Re- 
public, they took their stand upon the right 
and the duty of Congress to prevent the 
extension of slavery in the territories. But they 
did not object to the principle of a fugitive 
slave law. These points I will prove. 

The 4th article of the Republican platform 
adopted at Chicago ran thus, — " The mainte- 
nance inviolate of the right of the States, and 
especially the right of each State to order and 
control its own domestic institutions, according 
to its own judgment, exclusively, is essential 
to that balance of power on which the perfection 
and endurance of our political fabric belongs." 
The 7th and 8th articles were as follows : — 
7. That the new dogma that the Constitution 
pf its own force carries slavery into any or 
all of the territories of the United States is 
a dangerous political heresy, at variance with 
the explicit provisions of that instrument itself, 

1 Mr. Greeley's remarks upon Mr. Lincoln's Inaugural 
Address show how imperfectly he represented, in 1861, the 
views of the ultra-abolitionists. — " American Conflict," p. 426. 

E 



50 Considerations on 

with contemporaneous exposition, and with 
legislative and judicial precedent, is revolu- 
tionary in its tendency, and subversive of the 
peace and harmony of the country. 

8. That the normal condition of all the 
territory of the United States is that of free- 
dom ; that as our republican fathers, when 
they had abolished slavery in all our national 
territory, ordained that " no person should be 
deprived of life, liberty or property, without 
due process of law," it becomes our duty by 
legislation, whenever such legislation is neces- 
sary, to maintain this provision of the Constitu- 
tion against all attempts to violate it ; and we 
deny the authority of Congress, of a territorial 
legislature, or of any individuals, to give legal 
existence to slavery in any territory of the 
United States." 

In conformity with these declarations Mr. 
Lincoln said at Cincinnati, September 19th, 
1859, — " I assured him (Mr. Douglas), as I now 
assure you, that I neither then had, nor have, 
or ever had any purpose of in any way inter- 
fering with the institution of slavery where it 



The American War. 51 

exists. I believe we have no power under the 
constitution of the United States, or rather 
under the form of government under which we 
live, to interfere with the institution of slavery, 
or any other of the institutions of our sister 
States, be they free or slave States. I declared 
then and I now re-declare that I have as little 
inclination to so interfere with the institution 
of slavery where it now exists, through the 
instrumentality of the general Government, or 
any other instrumentality, as I believe we have 
no power to do so." 1 

On the subject of the territories Mr. Lincoln 
said, at Freeport, 1858, — " In regard to the other 
question of whether I am pledged to the 
admission of any more slave States into the 
Union, I state to you very frankly that I would 
be exceedingly sorry ever to be put in a posi- 
tion of having to pass upon that question. I 
should be exceedingly glad to know that there 
would never be another slave State admitted 
into the Union ; but I must add that if slavery 

1 Mr. Lincoln referred to this passage, and repeated it in his 
Inaugural Address. 

E 2 



52 Considerations on 

shall be kept out of the territories during the 
territorial existence of any one given territory, 
and then the people shall, having a fair chance 
and a clear field, when they come to adopt the 
Constitution, do such an extraordinary thing as 
to adopt a slave Constitution, uninfluenced by 
the actual presence of the institution among 
them, I see no alternative, if we own the 
country, but to admit them into the Union." 

Being asked by Mr. Douglas whether he 
stood pledged to the unconditional repeal of 
the Fugitive Slave Law, Mr. Lincoln (also at 
Freeport) replied, — " I have never hesitated 
to say, and I do not now hesitate to say, 
that I think, under the Constitution of the 
United States, the people of the Southern 
States are entitled to a Congressional Fugi- 
tive Slave Law. Having said that, I have 
had nothing to say in regard to the existing 
Fugitive Slave Law, further than that I think 
that it should have been framed so as to be 
free from some of the objections that pertain 
to it, without lessening its efficiency. And 
inasmuch as we are not now in an agitation 



The American War. 53 

in regard to an alteration or modification of 
that law, I would not be the man to introduce 
it as a new subject of agitation upon the general 
question of slavery." 

Being asked whether he stood pledged to 
the abolition of slavery in the district of 
Columbia, Mr. Lincoln said, — " I have my mind 
very distinctly made up. I should be exceed- 
ingly glad to see slavery abolished in the district 
of Columbia. I believe that Congress possesses 
the constitutional power to abolish it. Yet, as 
a member of Congress, I should not with my 
present views be in favour of endeavouring to 
abolish slavery in the district of Columbia, 
unless it would be upon these conditions : — first, 
that the abolition should be gradual ; second, 
that it should be on a vote of the majority of 
qualified voters in the district ; and third, that 
compensation should be made to unwilling 
owners. With these three conditions, I confess 
I would be exceedingly glad to see Congress 
abolish slavery in the district of Columbia, and 
in the language of Henry Clay, 'sweep from 
our capitol that foul blot upon our nation.'" 



54 Considerations on 

One more quotation from Mr. Lincoln, illus- 
trative of the general view which he took of 
the crisis, and I will conclude. In his reply to 
the Sprinrfield Convention nominating him for 
the Presidency, he said, " If we could but know 
where we are and whither we are tending, we 
could better judge what to do and how to do 
it. We are now in the fifth year since a policy 
was initiated with the avowed object and con- 
fident promise of putting an end to slavery 
agitation. Under the operation of that policy, 
that agitation has not only not cease::, but has 
constantly augmented. In my opinion it will 
not cease until a crisis shall have been reached 
and passed. A house divided against itself 
cannot stand. I believe this Government cannot 
endure permanently half slave and half free. 
I do not expect the Union to be dissolved ; I 
do not expect the house to fall, but I do expect 
it will cease to be divided. It will become all 
one thing or all the other. Either the opponents 
of slaven.' will avert the further spread of it, and 
place it where the public mind shall rest in the 
belief that it is in the course of ultimate extinc- 



The American War. 55 

tion, or its advocates will push it forward, till it 
shall become alike lawful in all the States, old 
as well as new, North as well as South." 

Thus then stood the three great parties of 
the State. The Democrats, strong in numbers, 
strong in ability, in tradition, and in the great 
name of their leader recede from our view ; too 
timid or too scrupulous to admit that slavery 
was either right or wrong, 1 more tolerant of 

1 Mr. Lincoln so puts it in his speech at Alton. ' ' I have 
stated upon former occasions, and I may as well state again, 
what I understand to be the real issue in this controversy between 
Judge Douglas and myself. On the point of my wanting to 
make war between the free and the slave states there has been 
no issue between us. So, too, when he assumes that I am in 
favour of introducing a perfect, social, and political equality 
between the white and black races. These are false issues upon 
which Judge Douglas has tried to force the controversy. There 
is no foundation in truth for the charge that I maintain either of 
these propositions. The real issue in this controversy, the one 
pressing upon every mind, is the sentiment on the part of one 
class that looks upon the institution of slavery as a wrongs and of 
another class that does not look upon it as a wrong. The senti- 
ment that contemplates the institution of slavery in this country 
as a wrong is the sentiment of the Republican party. It is the 
sentiment around which all their actions, all their arguments 
circle, from which all their propositions radiate. They look 
upon it as being a moral, social, and political wrong ; and while 
they contemplate it as such, they nevertheless have due regard 
for its actual existence among us, and the difficulties of getting 



56 Considerations on 

that institution than of the extension of Federal 
power, they were vituperated by each extreme 
party in turn ; but they merit our respect for 
the pertinacity with which they clung to what 
they conceived to be legality, and for the pas- 
sionate earnestness with which they laboured 
for peace. They succumbed to the fate which 
in times of revolution waits upon those who 

rid of it in any satisfactory way, and to all the constitutional 
obligations thrown about it ; yet, having a due regard for these, 
they desire a policy in regard to it that looks to its not creating 
any more danger. They insist that it should, so far as may be, 
be treated as a wrong, and one of the methods of treating it as a 
wrong is tc on thai it s/uw~.:' 5 rau v larger* They 

also desire a policy that looks to a peaceful end of slaver.- at 
some time as being wrong. ... I have said, and I repeat it 
here, that if there be a man amongst us who does not tmink that 
the institution of slavery is wrong in any one of the aspects of 
which I have spoken, he is misplaced and ought not to be with 
us. And if there be a man amongst us who is so impatient of it 
as a wrong as to disregard its actual presence among us, and the 
difficulty of getting rid of it suddenly in a satisfactory way, and 
to disregard the constitutional obligations thrown about it, that 
man is misplaced if he is on our platform. We disclaim sym- 
pathy with him in practical action. He is not placed properly 
with us. ... I have said there is a sentiment which treats it as 
noi being wrong. That is the Democratic sentiment :: this day. 
I do no: mean to say that ever}- man who stands within that 
range positively asserts that it is right" 



The American War. 57 

attempt to steer the middle course ; and as we 
watch this contest, our attention is fixed on 
the two great parties, to whom compromise 
had become a thing of the past, and who were 
prepared, if need be, to fight out the matter 
between them, even u to the bitter end." 

It was no doubt one of the misfortunes of 
Slavery that it established not only a moral 
antagonism between the North and the South, 
but an apparent opposition of material interests 
as well ; and it would be difficult, perhaps 
impossible, to disentangle the motives arising 
from these two considerations, and to assign 
their due weight to each respectively. The 
Northerners were Protectionists, because they 
were manufacturers, the Southerners were Free- 
traders, because, being slave-owners, they w^ere 
without manufactures. Still, that the Tariff 
question should have been so generally believed 
in England to be the cause, or the principal 
cause of Secession, must, I think, have occa- 
sioned surprise to the people of the South, 
The Missouri Compromise, Mr. Clay's Compro- 
mise of 1850, both of them are perpetually 



58 Considerations on 

referred to as having been devised in the hope 
that they might effect a permanent recon- 
ciliation between North and South. Neither 
of them touch the question of tariffs. Mr. 
Breckinridge, accepting the nomination for the 
Presidency at the hands of the South, confines 
himself to one subject exclusively, slavery. 
The "Declaration of immediate causes which 
induce and justify the secession of South 
Carolina from the Federal Union," sums up the 
case of the Slave-States, is absolutely silent 
upon tariffs, and concludes that a all hope of 
remedy is rendered vain by the fact that public 
opinion at the North has invested a great poli- 
tical error with the sanctions of a more erro- 
neous religious belief." Secession having been 
already declared, Mr. Crittenden, a man of 
age, ability, and long political experience, pro- 
posed in the Senate a series of resolutions, in 
the hope of averting the calamity. 1 They form, 

i They are given in extenso by Mr. Greeley in his * ' American 
Conflict, " p. 377. Nor do I find that in the recent conference at 
Fortress Monroe much was said about tariffs. The reader may 
also consult on this point Mr. Spratt's Philosophy of Secession 
in the Appendix to Cairnes' Slave Power. 



The American War. 59 

in truth, but one of many schemes presented to 
Congress at that juncture with the same object, 
and in none of them is any allusion to tariffs to 
be found. Mr. Lincoln, in his Inaugural 
Address, 1 a document worthy certainly of the 



Mr. Spence in his " American Union " says, p. 109, " In this 
we see the truth of Dr. Mackay's observation, the question is 
political on both sides, and nothing else. The moment the 
South has secured the vote of North Mexico, its people care 
little to go there, or to take slaves there, for the reasons we have 
named. The object of the North is the same, the vote of the 
State in the Senate. The name of slavery is used as a telling 
cry, as an electionary manoeuvre. Those who want a pretext 
naturally adopt the most specious. To suppose them in 
earnest in this cry would really be to mock their intelligence, for 
we must assume them to be outraged and excited by an evil at 
a distance of 2,500 miles, which they endure in their own 
metropolis, crawling on the steps of the Capitol." If this is true 
both North and South are certainly most consummate actors. 
The question resolves itself into this, — Which is the predominant 
motive with the North, the political motive or the moral ? In 
either case slavery lies at the root of the antagonism between the 
two sections. 

It is true that slavery existed until the war in the district of 
Columbia, but it is also true that the North had spared no 
efforts to get rid of it. 

1 Mr. Lincoln's second Inaugural Speech is far beyond my 
limits. I cannot, however, refrain from observing that it is 
remarkable for the frank admission that slavery is a sin, for which 
the whole American people (and we must add, the mother 



60 Considerations on 

gravity of the crisis, and the sincerity of which 
none who have read it can doubt, dealt with 
one class of subjects only, those connected 
with the Institution of Slavery* Mr. Jefferson 
Davis, in his Message, is not indeed silent upon 
the opposition of interests between the commer- 
cial North, and the agricultural South, and 
"the attempts" on the part of the former, 
" often successful, to benefit one section of the 
country at the expense of the other," but 
he dwells principally upon " another subject of 
interest involving interests of such transcendant 
magnitude, as at all times to create the appre- 
hension in the minds of many devoted lovers of 
the Union, that its permanence was impossible." 
That subject was the continuance of the exten- 
sion, and of the existence of slavery. The con- 
clusion is irresistible that slavery, or more 
precisely the extension of slavery, was under- 
stood to be the issue in this momentous contest. 

country) is alike answerable. This has unhappily been but too 
little remembered, as well as the fact that the same motives which 
at all events contributed largely to abolish it in the North, fixed it 
in the South. 



The American War. 61 



II. 

The great charge which it is obvious to bring 
against the South, is, that the opinions which 
they have for some years professed upon the 
institution of slavery, are very different from 
those which were held by the Fathers of the 
Republic, and very much less in harmony with 
those entertained by the rest of the civilized 
world. 

Washington, Jefferson, Madison, Henry, (all 
Virginians,) Franklin, Jay, 1 Alexander Hamil- 
ton, Adams, and many more, agreed in deplor- 
ing slavery as a great crime and calamity, and 
looked forward to its gradual extinction. Jefifer- 

1 The language of Jay, who was first Chief Justice of the 
United States, is remarkable. " I concur in the opinion that it 
(slavery) ought not to be introduced or permitted in any of the 
new States, and that it ought to be gradually diminished and 
finally abolished in all of them. To me the constitutional 
authority of the Congress to prohibit the migration and importa- 
tion of slaves into any of the States does not appear question- 
able. "— Letter to Hon. Elias Bondinet, 17th November, 18 19, 
quoted in Helper's '•Impending Crisis," p. 196. 



62 Considerations on 

son had advocated and devised a scheme of 
emancipation for Virginia before American 
independence 1 was secured. Addressing Virgi- 
nians, he had said, 2, u It is still in our power 
to direct the process of emancipation and 
deportation peaceably, and in such slow degrees 
as that the evil will wear off insensibly, and 
their places be pari passtt filled up by free 
white labourers." The Virginia Society for 
the Abolition of Slaver}', organized in 1791, 
addressed Congress in these words : 3 u Your 
memorialists, fully aware that righteousness 
exalteth a nation, and that slaver}' is not only 
an odious degradation, but an outrageous viola- 
tion of one of the most essential rights of 
human nature, and utterly repugnant to the 
precepts of the Gospel, which breathes peace 
on earth and good will to men, lament that 

1 Olmstead's Slave States, p. 261. 

2 Quoted by Mr. Lincoln at the Cooper Institute, 27th Feb- 
ruary, 1S60. The ordinance of 17S7 excluding slavery from the 
north-west territory was supported by the leading men, both 
North and South. Mr. J. McLean's judgment in the Dred 
Scott case, and New American Encyclopaedia, tit. Slavery. 

3 Quoted in Helper's "Impending Crisis/' p. 173. 



The American War. 63 

a practice so inconsistent with the policy, and 
the inalienable rights of men, should subsist 
in so enlightened an age, and among a people 
professing that all mankind are by nature 
equally entitled to freedom." The first presi- 
dent of the Pennsylvania Abolition Society, 
founded in 1775, was Benjamin Franklin. The 
New York Manumission Society was formed 
in 1785, John Jay being the first president, 
and Alexander Hamilton his successor ; whilst 
similar associations were also formed in Connec- 
ticut, Rhode Island, Delaware, Maryland, and, 
as we have mentioned, in Virginia. 1 Indeed, in 
principle, the great men of that day were all 
abolitionists. 

But the language which reaches us now from 
the South evinces a singular revolution of senti- 
ment. Slavery has ceased to be an evil to be 
deplored and, if possible, removed ; it has be- 
come a kind of second religion, to be venerated 
and propagated. Hear Mr. A. H. Stephens, 2 

1 Ripley and Dana's New American Encyclopaedia, tit. Slavery. 

2 Speech delivered at Savannah, March, 1861, quoted by 
Cairnes in his Slave-Power, p. 168. The more ardent 



64 Considerations 

Vice-President of the Confederate States : " The 
ideas entertained at the time of the formation 
of the old constitution were that the enslave- 
ment of the African race was in violation of the 
laws of nature ; that it was wrong in principle, 
socially, morally, and politically. Our new 
government is founded on exactly opposite 
ideas ; its foundations are laid, its corner-stone 
rests upon the great truth that the negro is not 
equal to the white man ; that slaver}- — subordi- 
nation to the superior race — is his natural and 
moral condition. Thus, our government is the 
first in the history of the world based upon 
this great physical, philosophical, and moral 
truth. ... It is up :■:: this our social fabric is 
firmly planted, and I cannot permit myself to 
doubt the ultimate success and full recognition 
of this principle throughout the civilized and 
enlightened world. This stone, which was re- 
Southerners have gone so far as to advocate a revival of the 
slave-trade. New A m e ri : a r. E n ; ; ; 1 : z aedia, tit. Slaver . And 
even Mr. Jefferson Davis, while declaring his disapprobation of 
opening the trade in Mississippi lisclaimed ' ' any coincidence of 
opinion with those who prate of the inhumanity and sinfulness of 
the trade." C airr.es ' Slave Power, note. p. 245. 5e;:nd eii:i:r.. 



The American War. 65 

jected by the first builders, is become the chief 
corner-stone in our new edifice." 

It were easy to multiply quotations of this 
kind, and indeed there are no grounds upon 
which slavery has not of late been justified 
in the South, whether biblical, moral, social, 
or physiological. The excuse which I have 
generally heard made for this degeneracy of 
sentiment is that it is wholly attributable to the 
fanatical abuse and uncharitable revilings of the 
Abolitionists. This party, it is said, reckless of 
the difficulties which beset the question of 
emancipation, with nothing to lose from it them- 
selves, have by their indiscriminating invectives 
driven the proud and sensitive men of the 
South to take up an extreme position on the 
subject which otherwise they would never have 
dreamt of. That the language too commonly 
used by the Abolitionists has done great harm, I 
am quite willing to believe ; and it may account, 
in part, 1 for the theoretical justifications of slavery 

- 2 I say, in part, because it should be remembered that the 
moderate men of the North agreed in holding slavery to be 
morally wrong ; and this belief held and applied in its most 

F 



65 Considerations on 

to which I have alluded ; for men do not care to 
cast about for extreme theories to defend what 
is not attacked. But, as an explanation of the 
decided resistance of the South to emancipation, 
in my opinion, it fails. 

Mr. Olmstead, in his " Slave States," 1 observes 
that he had always taken it for granted that it 
was only since the rise of the abolition agitation 
that the people of the South had shown a deter- 
mined disposition to perpetuate slavery, and 
that he still believes there to be " a certain 
basis of truth in the opinion;" but he adds, u that 
it is a curious coincidence that the general 
indisposition to emancipate slaves has been 
very closely proportionate to the expense or 
loss of cash property which would attend it. If 
an accurate yearly price-current of slaves since 
the Revolution could be had, it would indicate 
the fluctuating probabilities of their general 

inoffensive form might suffice to explain the counterposition on 
the part of those who were determined to extend the institution, 
that it was morally right. Indeed, unless they were prepared to 
divorce morals and politics altogether, they had no other course 
open to them. 
* Page 2S4. 



The American War. 67 

emancipation more exactly than the value of 
the English consolidated debt follows the vary- 
ing prospects of peace or war." 

This is, perhaps, not a very agreeable way of 
putting the matter, but few persons I suppose 
would deny that the immense development 
of the cotton trade with England and the 
increased value of the slaves consequent there- 
upon were very unfavourable to the prospects 
of emancipation. 

It is important to determine, if possible, when 
this violent abolition agitation began. 

Mr. Olmstead 1 mentions 1820 as the period 
assigned by the South for the commencement 
of " the machinations of the Abolitionists." 
Elsewhere 2 I find it stated that the period of 
profound repose which had followed the Missouri 
Compromise was not broken until 183 1, when 
William Lloyd Garrison established "The Lib- 
erator" in Boston. And many years certainly 
elapsed before the abolition party acquired any 
political importance. Even the Presidential 

1 Letter to a Southern Friend. 

2 New American Encyclopaedia, tit. Slavery. 

F 2 



68 Considerations on 

contest of i860 was, as we have seen, fought 
upon another issue. 

On the whole it would seem fair to conclude 
that the South had sufficient time given it to 
inaugurate an emancipation policy, had it been 
so inclined, before the Abolitionists had become 
a power in the State. Xor does it seem in the 
least degree probable that this party ever could 
have become influential, if the South had given 
any indication of the probability of a successful 
movement in that direction. The fact is, I 
believe, that it never did. 

In the freshness and ardour of youth Henry 
Clay devoted himself to the cause of gradual 
emancipation in his own State, Kentucky, but 
failed. " We were overpowered," he said many 
years afterwards, w by numbers, and submitted to 
the decision of the majority with the grace with 
which the minority in a Republic should ever 
yield to such a decision. I have never ceased, and 
never shall cease, to regret a decision, the effects 
of which have been to place us in the rear of 
our neighbours, who are exempt from slaver}-, 

1 See New American Encyclopaedia, tit. Kenry Clay. 



The A merican War. 69 

in the state of agriculture, the progress of manu- 
factures, the advance of improvement, and of 
the general prosperity of society." When in 
1849 Kentucky was on the point of re-casting 
her constitution, Henry Clay, then an old man, 
true to the principles of his youth, addressed a 
letter to his fellow-citizens, urging upon them a 
policy of gradual emancipation ; but in vain. 
Emancipation was rejected by a conclusive 
majority. What that great man was unable to 
achieve in Kentucky, there w T as not much chance 
of any man being able to effect in any other 
slave State of the Union. 1 

The treatment which the negro receives, the 
estimation in which he is held, in the free States 
of the North, have afforded an abundant source 
of recrimination to the South, and have suggested 
doubts of Northern sincerity in the cause of 
emancipation. " The aversion to colour," say 
Messrs. Ripley and Dana, "is so far shared in 



1 Mr. Greeley mentions two efforts made in Virginia towards 
emancipation, in 1829, and 183 1-2, both of which failed.— 
American Conflict, p. no, and several in Delaware, p. in, 
note. 



JO Considerations on 

the non-slaveholding States, that in only one of 
their number (Vermont) are negroes entirely the 
equals of the whites before the law, and socially 
they are everywhere treated as an inferior caste." 1 
And Chancellor Kent says, that u in no part of 
the country, except in Maine, do free coloured 
persons, in point of fact, participate equally with 
the whites in the exercise of civil and political 
rights." °- 

Mr. Lincoln himself made no profession of 
extraordinary love for the negro. He denied, 
indeed, in company with high authorities, that 
the negro had no lot in the Declaration of 
Independence. u I think," he said, 8 u the authors 
of that notable instrument intended to include 
all men, but they did not intend to declare all 
men equal in all respects. They did not mean to 
say all were equal in colour, size, intellect, moral 
developments, or social capacity. They defined 

i New American Encyclopaedia, tit. Slavery, 1862. 

2 Commentaries, vol ii. p. 29S, note, tenth edition. The 
laws adverse to the free negroes in the North have all been 
collected by Mr. McHenry in his book on the Cotton Trade, 
p. 244, but some which he mentions had already been repealed. 

3 At Springfield. 



The A merican War. 7 1 

with tolerable distinctness in what respects they 
did consider all men created equal — equal in 
1 certain inalienable rights, among which are life, 
liberty, and the pursuit of happiness.' This 
they said, and this they meant. They did not 
mean to assert the obvious untruth, that all were 
then actually enjoying that equality, nor yet that 
they were about to confer it immediately upon 
them. In fact, they had no power to confer 
such a boon. They meant simply to declare the 
rights so that the enforcement of it might follow 
as fast as circumstances should permit. 

"They meant to set up a standard maxim, 
which should be familiar to all, and revered by 
all ; constantly looked to, constantly laboured 
for, and even though never perfectly attained, 
constantly approximated, and thereby con- 
stantly spreading and deepening its influence 
and augmenting the happiness and value of life 
to all people, of all colours, everywhere. The 
assertion that ' all men are created equal ' was 
of no practical use in effecting our separation 
from Great Britain ; and it was placed in the 
Declaration, not for that, but for future use. Its 



72 Considerations on 

authors meant it to be as, thank God, it is now 
proving itself, a stumbling-block to all those who 
in after-times might seek to turn a free people 
back into the hateful paths of despotism. They 
knew the proneness of prosperity to breed 
tyrants, and they meant, when such should re- 
appear and recommence their vocation, they 
should find left for them at least one hard nut 
to crack." 

Thus joining issue with the South upon this 
cardinal point, he took pains to show that he 
was no advocate of social or political equality 
with the negro. 1 " I will say then that I am not, 
nor ever have been, in favour of bringing about 
in any way the social and political equality of 
the white and black races ; that I am not, nor 
ever have been, in favour of making voters of 
jurors of negroes, nor of qualifying them to hold 
office, nor to intermarry with white people,' 2 and 

i Speech at Charleston, Coles County, 18th September. 

2 The law of Illinois (1810) on this subject runs, or ran, thus : 
' ' No person of colour, negro or mulatto, of either sex, shall be 
j oined in marriage with any white person, male or female, in this 
State ; and all marriages or marriage contracts entered into 
between such coloured person and white person shall be null and 



The American War. 73 

I will say in addition to this, that there is a phy- 
sical difference between the white and black 
races which I believe will ever forbid the two 
races living together upon terms of social and 
political equality. ... It seems to me quite 
possible for us to get along without making 
either slaves or wives of negroes. ... I have 
never had the least apprehension that I or my 
friends would marry negroes, if there w r as no law 
to keep them from it ; but as Judge Douglas and 
his friends seem to be in great apprehension that 
they might, if there w T as no law to keep them 
from it, I give him the most solemn pledge that 
I will to my last stand by the law of this State 

void in law; and any person marrying or contracting to marry 
shall be liable to pay a fine, be whipped in not exceeding thirty- 
nine lashes, and be imprisoned no less than one year." In 
1827 it was also enacted that "a negro, mulatto, or Indian, 
shall not be a witness in any Court, or in any case, against a 
white person H (McHenry). The laws against immigration of 
negroes were also severe in this State. These, I see, have 
just been repealed (Times, 1st March). Some Southern States 
(at all events Texas and Arkansas) have passed laws enforcing 
emigration of free negroes on pain of reduction to slavery. 
Nichols' Forty Years of American Life, I. 215. Greeley, p. 
73. These two classes of enactments, read together, suggest 
a melancholy picture of the negro in America, whether bond 
or free. 



74 Considerations on the American War. 

which forbids the marrying of white people with 
negroes." 

I do not know whether these opinions would 
have found favour with the Abolitionist. It 
seems, however, to be clear that the North, taken 
as a whole, much as it abhorred slavery, did not 
love the negro. I speak in the past tense, for 
each mail brings tidings of some fresh point 
won for the African. "War," says Thucydides, 
u is a hard master, and adapts the feelings of men 
to its emergencies ; " and it may be that in that 
severe school both Xorth and South have learnt 
already the lessons of many generations. 



APPENDIX. 



The Dred Scott case was originally an action of 
trespass vi et armis (assault) brought in the Circuit 
Court of the United States for Missouri by Dred 
Scott against a person named Sandford. To the 
declaration which averred that the plaintiff was a 
citizen of Missouri, the defendant pleaded the follow- 
ing plea to the jurisdiction of the Court : " And the 
said John F. A. Sandford, in his own proper person, 
comes and says that this Court ought not to have 
or take further cognizance of the action aforesaid, 
because he says that the said cause of action, and 
each and every of them (if any such have accrued 
to the said Dred Scott) accrued to the said Dred 
Scott out of the jurisdiction of this Court, and ex- 
clusively within the jurisdiction of the Courts of 
the State of Missouri, for that to wit the said plaintiff 
Dred Scott is not a citizen of the State of Missouri, 
as alleged in his declaration, because he is a negro 
of African descent ; his ancestors were of pure 
African blood, and were brought into this country 
and sold as negro slaves, and this the said J. F. A. 
Sandford is ready to verify. Wherefore he prays 



7 5 Appendix, 

judgment whether this Court can or will take further 
cognizance of this action aforesaid/' 1 

To this plea there was a demurrer, 2 which was 
argued and decided in favour of the plaintiff ; but it 
was subsequently arranged between the parties, with 
the leave of the Court, that the action should proceed. 
The facts were agreed upon, and the cause went 
before a Jury, who were instructed by the Judge 
that upon the facts in the case the law was with 
the defendant. The case was brought up to the 
Supreme Court upon a bill of exceptions to this 
ruling. 

The facts agreed upon were these : Dred Scott was 
of African descent, and was born a slave. He was 
taken by his master from the State of Missouri, first 
to the State of Illinois, a free State, where he was 
held as a slave ; and thence to the territory of 
Upper Louisiana, part of the territory acquired by the 
United States from France in which slavery is for- 
bidden by the Missouri Compromise Bill. Here 
Dred Scott married, and had a child. His master 
subsequently removed him back to the State of 
Missouri, where he was residing when the action 
was brought. 

1 It must be observed that the plea does not state that the 
plaintiff is a slave, but a negro descended from slaves. 

2 This means that admitting the facts stated in the plea, the 
plaintiff denied their sufficiency in law as a bar to his sustaining 
the action. 



Appendix. 



// 



Mr. Chief Justice Taney delivered the judgment 
of the Court. 1 

The plea raises the question whether a negro 
whose ancestors were imported into the United 
States, whether he shall have been emancipated or 
born of parents who had become free before his 
birth, can be a citizen of the United States, and as 
such be entitled to sue in a Court of the United 
States. 

The right of citizenship which a State may confer 
within its own limits must not be confounded with 
the rights of citizenship as a member of the Union. 
Each State may confer rights of citizenship within 
itself, but such rights would be restricted to the State 
which gave them. The Constitution has conferred 
exclusively on Congress the right to establish an 
uniform rule of naturalization. Therefore no State 
can by any act or law of its own introduce a new 
member into the Union. 

The question then arises whether the provisions of 
the Constitution embrace the negro, so as to act 
upon him whenever he shall be made free under the 
law of a State, and be raised there to the rank of a 
citizen, and immediately clothe him with all the 
privileges of a citizen in every other State and its own 
courts. 

1 In the analysis of the Judgments of the Chief Justice, Mr. 
Justice McLean, and Mr. Justice Curtis, I have omitted the 
technical points relating to the pleadings, and the critical ex- 
amination of cases. 



/8 Appendix. 

They do not : therefore the plaintiff cannot be a 
citizen of the State of Missouri, and therefore cannot 
sue in its Courts. 

To prove this it becomes necessary to determine 
who were citizens of the several States when the 
Constitution was adopted. 

In the opinion of the Court the legislation and 
histories of the times and the language used in the 
Declaration of Independence show that neither the 
class of persons who had been imported as slaves, nor 
their descendants, whether they had become free or 
not, were then acknowledged as a part of the people, 
nor intended to be included in the general words 
used in that instrument. 

This opinion is established — 

i. By the terms of the Constitution, one clause of 
which reserves to each of the thirteen States the 
right to import slaves until the year 1808, if it should 
think proper ; whilst by another provision the States 
pledged themselves to pass a Fugitive Slave Law. 

2. By the laws of the several States with reference 
to the negroes passed soon after the Declaration of 
Independence, and long afterwards, all showing their 
inferior and subject condition. 

3. By the legislation of Congress as exemplified in 
the naturalization law passed in 1790, confining the 
right of becoming citizens to " aliens being free white 
persons \ " and in the first Militia Law, passed in 
1792, directing that "any free able-bodied white 



Appendix. 79 

male citizen" should be enrolled, the word "white" 
being evidently used to exclude the African race, 
and the word '"citizen" to exclude unnaturalized 
foreigners; and by an Act of 1813, which says that 
it shall not be lawful to employ on board ship " any 
person or persons except citizens of the United States 
or persons of colour, natives of the United States. 

4. By the constant and uniform action of the 
executive department, as exhibited in the decisions 
of two Attorney Generals (Wirt and Cushing), one 
of which was acted upon by the Secretary of State, 
who refused to grant passports to free persons of 
colour as citizens of the United States. 

It is moreover unreasonable to suppose that whilst 
the States confided the powers of naturalization ex- 
clusively to Congress, they should have left with the 
States a much more important power, that of trans- 
forming so numerous a class as that of negroes into 
citizens. 

There was a provision in the Article of Confede- 
ration " that the free inhabitants of each of the States, 
paupers, vagabonds, and fugitives, from justice ex- 
cepted, should be entitled to all the privileges and 
immunities of free citizens in the several States." 

The term "free inhabitant" would seem large 
enough to include the free Africans, but it was not 
intended to do so \ for the 5th section of the 9th 
Article provides that Congress shall have the power 
" to agree upon the number of land forces to be 



So Appendix. 

raised, and to make requisitions from each S*ate 
for its quota in proportion to the number of i 
inhabitants in such State.' 1 It cannot be supposed 
that a class of persons who were not to be countc 
providing for the defence of the country 
to be included under the words "free inhabitan 
in the preceding article to whom privileges and 
immunities were secured in even* State. 

In the Constitution the word ;; citizen " was sub- 
stituted for the word " inhabitant " in order to exclude 
foreigners who had not become citizens of some one 
of the States when the Constitution was adopted, i 
also even* description of persons who were not fully 
recognised as citizens in the several Sta 

Having thus disposed of the plea, and decided t. 
a free negro whose ancestors were brought into the 
Unite I States and sold as slaves is no: a citizen within 
the meaning of the Constitution, and is therefore 
not entitled to sue in that character, the Chief Justice 
proceeded to inquire whether the facts relied upon 
by the plaintiff in the case stated entitled him tc 
freedom. 

First as to the effect of the residence in the terri- 
tory. Was Congress authorized under any of the 
powers granted to it by the Constitution to pass the 
Missouri Compromise Bill at all ] 

It was not, and the Act is void and incapable of 
conferring freedom upon any one who is held as a 



Appendix. 8 1 

First, the article 1 of the Constitution which enacts 
that "Congress shall have power to dispose of and 
make all needful rules and regulations respecting the 
territory or other property belonging to the United 
States" has no bearing on the present controversy. 
and the power there given, whatever it may be, was 
confined to the territory which at that time belonged 
to, or was claimed by, the United States, and can 
have no influence upon a territory afterwards acquired 
from a foreign government. 

The history of the clause is as follows : In 1784 
Virginia ceded to the United States the tract of 
country lying north-west of the Ohio to enable Con- 
gress to dispose of the lands in aid of the war debt 
which had been incurred. 

At the time of the adoption of the Constitution 
all of the States similarly situated had ceded their 
unappropriated lands except North Carolina and 
Georgia. 

In 1787 an Ordinance was passed by Congress 
which was then composed of the representatives of 
thirteen separate sovereign and independent States, 
meeting together as equals to discuss and decide on 
certain measures which the States, by the Articles of 
Confederation, had agreed to submit to their decision. 
being in fact little more than a Congress of Ambas- 
sadors. Amongst the provisions, slavery was by 

1 Art. iv. sect. 3. 
G 



82 Appendix. 

agreement amongst the States prohibited in the terri- 
tory ceded by Virginia. 

When the constitution of the United States was 
formed, it became necessary to give the Government 
sufficient power to enable it to carry into effect the 
objects for which this territory had been ceded, and 
to authorize it to maintain the claim of the United 
States to the unappropriated lands in North Carolina 
and Georgia, which had not then been ceded. It 
was for this purpose that the clause in question was 
framed. 

The use of the definite article before " territory," 
the words u to make all needful rules and regulations," 
unlike those usually employed by statesmen in giving 
supreme powers of legislature, but apt to convey 
some specific power : the introduction of the words 
ik other property," which must be limited to mean 
other property in the territory ; the concluding words 
of the clause that nothing in the Constitution shall 
be so construed as to prejudice any claims of the 
United States, or of any particular States, clearly 
pointing to North Carolina and Georgia (which at 
the time that the clause was passed had refused to 
cede their unappropriated lands for the common 
benefit), and intended to exclude the conclusion that 
either party by adopting the constitution would sur- 
render what they deemed their rights ; finally, the 
whole clause taken together, the first part clearly 
referring to the territory already ceded, the latter part 



Appendix, 83 

to that not yet ceded, show that no other territory 
was in the mind of the framers of the constitution, 
or intended to be embraced in it. 

It follows that the power which Congress may have 
lawfully exercised in this territory, and which may 
have been sanctioned by judicial decision, can furnish 
no argument to support a similar exercise of power 
over territory afterwards acquired by the Federal 
Government. 1 Any arguments drawn from prece- 
dents showing the extent of power which the General 
Government exercised over slavery in this territory 
are altogether inapplicable to the present case. 

The next point to consider is what power the 
Federal Government may exercise in the territories 
over the person or property of a citizen of the 
United States 1 

In the absence of any express regulation in the 
Constitution on the subject, it may be concluded 
upon general principles that Congress is competent, 
acting within the scope of its constitutional authority, 
to establish such a form of government as it shall 
consider to be the best : but the power of Congress 

1 The difficult}* which seems to arise upon this argument of 
the Chief Justice is under what authority, if not by virtue of the 
clause in question, has Congress governed the territories of 
Orleans, Florida, Texas, &c. &e. Chief Justice Marshall 
says expressly in Canter's case that Florida, as a territory, is 
governed by this clause. Chief Justice Taney would not have 
been inclined to admit the other source of power derived im- 
pliedly from the right to acquire territory. 

G 2 



84 Appendix. 

over the person or property of a citizen can never 
be a mere discretionary power under the constitution. 
The rights of property are united with the rights of 
person, and placed on the same ground by the fifth 
amendment of the constitution, which provides that 
" No person shall be deprived of life, liberty, and 
property without due process of law." An Act of 
Congress which deprives a citizen of the United 
States of his liberty or property, merely because he 
came himself or brought his property into a particular 
territory of the United States, and who had com- 
mitted no offence against the laws, is not a due 
process of law. 

If Congress is without the power, it cannot authorize 
the Territorial Government to exercise it. 

There is no difference between property in a slave 
and other property. 

Therefore the Missouri Compromise Bill was not 
warranted by the Constitution, and is void ; and Dred 
Scott was not made free by being carried into the 
territory of Upper Louisiana. 

Nor was he made free by being taken into the 
State of Illinois. He was taken there as a slave, 
and was there held as such, and brought back in 
that character. Therefore his status as free or slave 
depended on the laws of Missouri, and by these laws 
he continues a slave. 



Appendix. 



II. 



Justices Nelson, Campbell, and Catron gave judg- 
ments coinciding with that of the Chief Justice. 

Mr. Justice Nelson, in the course of his judgment, 
observed that it must be admitted that Congress has 
no power to regulate or abolish slavery within the 
States, but that it was only by giving an Act of 
Congress operation within the State of Missouri that 
the plaintiff could succeed. 

That if Congress possesses the power under the 
constitution to abolish slaver}' in a territory, it must 
possess the like power to establish it. Then upon 
the reasoning relied on by the plaintiff, if a slave 
should be removed from a slave territory into a free 
State, his status would accompany him, and continue 
notwithstanding its laws against slaver}'. The laws 
of the Free States would be displaced, and the Act 
of Congress in its effect be substituted in their place. 

But the true answer is, that conceding for the 
purposes of argument that the Missouri Compro- 
mise Bill is valid within the territory for which it 
is enacted, it can have no operation beyond its 
limits or within the jurisdiction of a State. 

That if the plaintiff was free in Illinois, because 
the law of Missouri under which he was held as a 
slave had no extra territorial force, he became again 



86 Appendix. 

a slave upon his return to Missouri ; for why should 
the law of Illinois have greater force within the juris- 
diction of Missouri than the laws of the latter within 
that of the former ? 

Mr. Justice Campbell said that the compacts of 
cession of territory by North Carolina and Georgia, 
so far from admitting the right of Congress to pro- 
hibit slavery, by their " precautionary repudiation " of 
the ordinance of 1787 denied it. 1 

Mr. Justice Catron was of opinion that Congress 
was vested with power to govern all Territories of the 
Union by Art. iv. § 3, of the Constitution, and that 
otherwise he had been exercising an usurped judicial 
authority therein, but he relied upon Art. iv. § 2, 
which provides that " The citizens of each State shall 
be entitled to all privileges and immunities of citizens 
of the several States." 

He also quoted the treaty by which Louisiana 

1 The act accepting the deed of cession of the territory which 
afterwards became Tenessee by North Carolina was passed 2d 
April, 1 790. The 4th condition contained in the deed of cession, 
after providing that the inhabitants of the territory shall be tem- 
porarily governed in the same manner as those beyond the Ohio 
is followed by these words, "Provided always that no regula- 
tions made or to be made by Congress shall tend to emancipate 
slaves." 

So with respect to the Mississippi territoiy ceded by Georgia; 
it was a stipulation in the compact of cession accepted by Act of 
Congress, 7th April, 1798, that the ordinance of 1787 "shall 
in all its parts extend to the territory contained in the present 
act of cession, that article onlv excepted which forbids slavery." 



Appendix. 87 

was acquired from France in 1800. " The inhabi- 
tants of the ceded territory shall be incorporated 
in the Union of the United States, and admitted as- 
soon as possible according to the principles of the 
Federal Constitution to the enjoyment of all the 
rights, advantages, and immunities of citizens of the 
United States • and in the meantime they shall be 
maintained and protected in the enjoyment of their 
liberty, property, and the religion they profess." He 
said that when this treaty was made Louisiana was a 
slave province \ that " in the meantime " meant at 
all times between the date of the treaty and the time 
when the portion of the territory where the inhabi- 
tants resided was admitted into the Union as a State, 
and that on this ground an enactment prohibiting 
slavery in a territory of Louisiana was illegal and void. 



III. 



Mr. Justice McLean, dissenting, considered the 
question under the following heads : — 

1. "The locality of slavery." Slavery can exist 
nowhere except under the authority of positive law. 

2. "The relation which the Federal Government 
bears to slavery." Slavery is a State institution and 
the only connexion which the Federal Government 
holds with slaves in a State arises from the Fugitive 
Slave Law. 



88 Appendix. 

3. " The power of Congress to establish Terri- 
torial Governments and to prohibit the introduction 
of slavery therein." 

The third section of the fourth Article of the Con- 
stitution gives adequate legislative power to Congress. 
which can only make rules and regulations by legis- 
lation. If Congress should deem slaves or free 
coloured persons injurious to the population of a 
free territory, as conducing to lessen the value of 
the public lands, or on any other ground connected 
with the public interest, they have the power to pro- 
hibit them from becoming settlers in it. If there is 
a right to acquire territory there necessarily must be 
an implied power to govern it. In my opinion the 
right of the United States to govern the territories is 
based on the third section, but it m: iggested 

by C. J. Marshall, in the Atlantic Insurance Com- 

ny v. Canter) result necessarily from the fact that 
a territory is not within the jurisdiction of any par- 
ticular State, or it may be the inevitable consequence 
of the right to acquire territory. 

The power of Congress in this matter has received 
abundant confirmation, e. g. by 

The Report in the House of Representatives by 
John Randolph, of Roanoke, as Chairman of a Com- 
mittee in March, 1803, upon a petition presented to 
Congress praying the suspension of the provision pro- 
hibiting slavery in Indiana, recommending that it 
should not be granted. 



Appendix. 89 

By the prohibition by Congress in 1804 of the 
introduction of slaves in Orleans territory from any 
other part of the Union under the penalty of freedom 
to the slave. 

By the Missouri Compromise Bill, which was sub- 
mitted by Mr. Monroe to his cabinet before he 
signed the Act, who held the restriction of slavery 
in a territory to be within the constitutional powers 
of Congress. 1 

This Bill has been held null and void, principally 
on the distinction drawn between it and the ordi- 
nance of 1787. This latter, it is said, was a compact 
entered into by the Confederated States before the 
adoption of the Constitution. But the ordinance did 
not go into operation by the virtue of the authority 
of the Confederation, but by reason of its modifi- 
cation and adoption by Congress under the consti- 
tution. That it was intended for the government of 
the north-west territory alone is admitted. It was 
extended to Southern territories, with modifications, 
by Acts of Congress, and to some Northern terri- 
tories. The ordinance was made valid by Act of 
Congress. The Missouri Bill did not purport to 



1 It is, I think, proved beyond doubt that this question was 
submitted distinctly by Mr. Monroe to his cabinet, in which were 
Mr. Wirt, Mr. Crawford, and Mr. Calhoun. Whether Mr. 
Calhoun committed himself definitely on the constitutional point 
is not so certain, but he allowed in 1838 that his impressions 
had been in favour of the Bill. 



go Appendix. 

forfeit property or take it for public purposes. It 
only prohibited slavery, in doing which it followed 
the ordinance of 1787. 

The argument that the treaty with France is fatal 
to the Missouri Bill is bad. Such a subject did not 
belong to the treaty-making power, and any such 
arrangement would have been nugatory. Neither by 
any admissible construction could the guarantee be 
carried further than the protection of property in 
slaves at that time in the ceded territory. And this 
had been complied with : for the organization of the 
Slave States of Louisiana, Missouri, and Arkansas 
embraced every slave in Louisiana at the time of 
the cession. 

4. " The effect of taking slaves into a State of 
territory, and so holding them where slavery is pro- 
hibited." 

The state of slavery is a mere municipal regula- 
tion, and can only exist by force of positive law. 
If a slave absconds he may be reclaimed under 
the Fugitive Slave Law ; but if he accompanies his 
master as a slave into free territory, no authority can 
be claimed against him under the Constitution of the 
United States or any law of Congress. 

But it is argued, the slave is taken as property, the 
same as other property which the master may owm. 
The answer to this is that coloured persons are made 
property by the law of the State, and no such power 
has been given to Congress. And the master does 



Appendix. 9 1 

not carry with him the law of the State from which 
he removes into the territory. 

It is said that the territories are common property 
of the States, and that every man has a right to go 
there with his property. But a slave is not property 
beyond the operation of the local law w T hich makes 
him such. The Constitution in express terms recog- 
nises the status as founded on the municipal law. 
" No person held to service or labour in one State, 
under the laws thereof, escaping into another shall," 
&c. &c. Suppose a slave to escape from a territory 
where slavery is not authorized by law, can he be 
reclaimed 1 

The decisions of the Supreme Courts of the 
Southern States, and especially of the State of 
Missouri, sustain this position ; and the conclusion 
is that a master who takes his slave to reside in a 
State or territory where slavery is prohibited thereby 
emancipates him. 

5. " Whether the return of a slave under the con- 
trol of his master, after being entitled to his freedom, 
reduces him to his former condition." 

The law is that a master by taking his slave to a 
free State or territory, and employing him there as 
a slave, emancipates him as effectually as by a deed 
of emancipation, and the slave is entitled to his 
freedom everywhere. But if he returns voluntarily 
to the Slave State whence he came, it may be a 
question whether the former status of slavery does not 



92 Appendix. 

attach. The present case as stated leads to the 
inference that the plaintiff did not return to Missouri 
voluntarily. u He was removed." In that case he 
is entitled to freedom. 



IV. 



Mr. Justice Curtis, on the point raised by the | lea 
whether an African whose ancestors were sold as 
slaves can be a citizen, said there was no doubt that 
at the time of the ratification of the Articles of the 
Confederation all free native-born inhabitants of the 
States of New Hampshire, Massachusetts, New York, 
New Jersey, and North Carolina, though descended 
from African slaves, were not only citizens of those 
States, but each of them who had the other necessary 
qualifications possessed the franchise of electors ; 
(The State v. Manuel), in which it is laid down, 
" Slaves manumitted here became (upon the Reso 
lution) free men, and therefore if born within North 
Carolina are citizens of North Carolina, and all free 
persons born within the State are born citizens of the 
State." He added it was true beyond all controversy 
that persons of colour descended from slaves were 
by the constitution of Massachusetts (1780) made 
citizens of the State, and he referred also to the con- 
stitutions of New Hampshire. New York, and New 
Jersey. 



Appendix. 93 

With respect to the Article of the Confederation 
cited by the Chief Justice : " The free inhabitants 
of each of these States, paupers, vagabonds, and 
fugitives from justice excepted, shall be entitled to 
all the privileges and immunities of free citizens in the 
several States," he stated that an amendment pro- 
posed 25th June to insert " white" between " free " 
and " inhabitants " was rejected, eight States voting 
for it, tw T o against it : showing that under the Con- 
federation and at the time of the adoption of the 
constitution free coloured persons might be citizens. 

Did the constitution of the United States deprive 
them of this right % 

In at least five of the States coloured persons no 
doubt voted upon the adoption of the constitution. 
It would be strange if they were disfranchised by it. 

Nor is there anything in the constitution which 
proprio vigor e deprives of their citizenship any class 
of persons who were citizens of the United States 
at the time of its adoption. 

The Judge then proceeded to establish by argument 
the four following conclusions : — 

1. That the free native-born citizens of each State 
are citizens of the United States. 

2. That as free coloured persons born within some 
of the States are citizens of those States, such per- 
sons are also citizens of the United States. 

3. That every such citizen residing in any State 
has the right to sue, and is liable to be sued in the 



94 Appendix. 

Federal Courts as a citizen of that State in which 
he resides. 

4. That as the plea to the jurisdiction in the case 
shows no facts except that the plaintiff was of African 
descent and that his ancestors were sold as slaves, it 
is bad. 

With reference to the facts agreed upon, the Judge 
said, that assuming the Missouri Compromise Bill 
to be valid, Dred Scott and his wife were effectually 
emancipated, because they were with the consent 
of his master married in the territory ; and that the 
consent of the master that his slave residing in a 
country which does not tolerate slavery may marry, is 
an effectual act of emancipation, and that the law does 
not enable the master to assert a title to the married 
persons as slaves, and thus destroy the obligation of 
the contract of marriage, and bastardize their issue, 
and reduce them to slavery. 

But is the Missouri Bill constitutional and valid ! 

It must be remembered that the several acts ceding 
the territory to which the ordinance of 1787 relates, 
cede in terms to the United States the jurisdiction as 
well as the soil. 

A competent grant of power to Congress to govern 
this territory followed as a necessary consequence. 
This is given in the article referred to " to dispose of 
and make all needful rules and regulations," &c. &:c. 
And there is nothing in the language, the history, or 
the subject-matter of this article which restricts its 



Appendix, 95 

operation to territory owned by the United States 
when the constitution was adopted. Therefore, it 
applies equally to the territory acquired from France, 
in 1803. 

Then is the prohibition of slavery an exception to 
the general term, " all needful rules and regulations ¥' 

When the constitution was framed and adopted, 
the allowance and the prohibition of negro-slaver}* were 
recognised subjects of municipal legislation. Even- 
State had in some measure acted thereon, and the only 
legislative act concerning the territory, the ordinance 
of 1787, contained a prohibition of slavery. The 
purpose and object of the clause being to enable 
Congress to provide a body of municipal law for the 
government of the settlers, the allowance or prohibition 
of slavery came within the known and recognised 
scope of that purpose and object. 

The practical construction placed on this clause 
confirms this view. 

Here the Judge cited the precedents of the terri- 
tories of Indiana, Michigan, Illinois, Wisconsin. 
Iowa, Oregon, and the French territory under the 
Missouri Compromise Bill, in which slavery had been 
prohibited by Congress, and of Louisiana, Orleans, 
Missouri, and Florida, in which it had been recog- 
nised. 

He concluded that while the regulation is one 
tt respecting the territory," while it is in the judgment 
of Congress " needful," while no other clause of the 



96 Appendix. 

constitution can be shown which requires the insertion 
of an exception respecting slavery, and while the 
practical construction of fifty years forbids such an 
exception, it would violate every sound rule of inter- 
pretation to force that exception into the constitution. 

Moreover, he added, is it conceivable that the 
constitution should have conferred the right on every 
citizen to become a resident on the territory ot the 
United States with his slaves, and there to hold them 
without having made or provided for any municipal 
regulations, which are essential to the existence of 
slavery] It is more rational to conclude that the 
framers of the constitution were aware that persons 
held to service under the laws of a State are property 
only to the extent and under the conditions fixed by 
those laws, that they must cease to be available as 
property when their owners voluntarily place them- 
selves permanently within another jurisdiction, where 
no municipal laws on the subject of slavery exist \ and 
that being aware of these principles, and having said 
nothing to interfere with or displace them, or to com- 
pel Congress to legislate in any particular manner on 
the subject, and having empowered Congress to make 
all needful rules and regulations respecting the terri- 
tory of the United States, it was their intention to 
leave to the discretion of Congress what regulations, 
if any, should be made concerning slavery therein. 

The clause in the constitution which, it is suggested, 
requires the insertion of the exception of the prohibi- 



Appendix. 97 

tion of slavery is that which declares that " no person 
shall be deprived of his life, liberty, or property, with- 
out due process of law." 

This clause is borrowed from Magna Charta, and 
if the prohibition of slavery in a territory in 1820 
violated it, it was violated in 1787, and has been 
violated constantly not only by Congress, and by free 
States, but by slave States as well. 

The objection that the treaty with France guaran- 
teed slavery cannot be sustained. 

Supposing it were true that this treaty had contained 
an express stipulation that the United States would 
not exclude slavery from the territory in question, it 
would not be competent for the court to declare that 
an act of Congress excluding it was void by force of 
the treaty. This is not a judicial, but a practical and 
legislative question. 

But the rights secured by the treaty were individual 
rights ; and the stipulation was temporary, and ceased 
to have any effect when the then inhabitants of the 
territory of Louisiana, in whose behalf the stipulation 
was made, were incorporated into the Union. 

Therefore, the Missouri Compromise Bill was con- 
stitutional and valid. 



K. CLAY, SON, AND TAYLOR, PRINTEKS- 



L1B RARY OF CONGRESS 




012 028 382 






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